20-000979 Sudhir Kotecha vs. Westminster Services, Inc.; Westminster Asbury/Asbury Arms, Inc.; Joseph Down; And Denise Miles Status: Closed Recommended Order on Monday, May 3, 2021.

Summary: Petitioner failed to establish that Respondents discriminated against him in violation of the Fair Housing Act.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S UDHIR K OTECHA ,

Petitioner ,

vs. Case No. 20 - 0979

W ESTMINSTER S ERVICES , I NC .;

W ESTMINSTER A SBURY /A SBURY A RMS ,

I NC .; J OSEPH D OWN ; A ND D ENISE M ILES ,

Respondent s .

/

R ECOMMENDED O RDER

On December 10, 2020, and February 8, 2021, Administrative Law Judge

(ALJ) Robert J. Telfer III, of the Florida Division of Administrative Hearings

(DOAH), conducted an evidentiary hearing p ursuant to section 120.57(1),

Florida Statutes (2018), in Tallahassee, Florida, via Z oom web - conference .

A PPEARANCES

For Petitioner: Nicholas A. Vidoni, Esquire

Vidoni Law PLLC

959 North Cocoa Boulevard , Unit 5

Cocoa, Florida 32922

For Respondent s : Stephen G. Henderson, Esquire

Henderson Legal Group

5419 Village Drive

Viera, Florida 32955

S TATEMENT OF T HE I SSUE S

W hether Respondents discriminated against Petitioner , Sudhir Kotecha,

in violation of the Florida Fair Housing Act (FHA) , chapter 76 0, part II,

Florida Statutes, and, if so, the appropriate penalty; and whether Petitioner

Sudhir Kotecha participated in the instant proceeding for an improper

purpose, and, if so, whether the undersigned should recommend an award of

attorneyÔs fees and co sts to Respondents pursuant to section 120.595.

P RELIMINARY S TATEMENT

On November 27, 2018, Mr. Kotecha filed a Housing Discrimination

Complaint with the Florida Commission on Human Relations (FCHR),

alleging that Respondents (as well as Joseph Downs and Denise Miles)

discriminated against him based upon his national origin and handicap, in

violation of the FHA. Mr. KotechaÔs complaint stated , verbatim :

Complainant Sudhir Kotecha identifies as a person

of Indian race and has a physical disability.

Therefo re, Complainant belongs to a class of

persons whom the Fair Housing Act (Ñthe ActÒ)

protects from unlawful discrimination by virtue of

national origin and disability. Complainant rents

an apartment in ÑWestminster AsburyÒ located at

1430 Dixon Blvd, Cocoa, FL 32922, which is owned

by Asbury Arms, Inc. under the rules and

regulations of Respondent Westminster Services,

Inc. and Managed by Property Manager, Joseph A.

Down.

Complainant alleged that he is of Indian national

origin and he also has a physical di sability.

Complainant alleged that since he moved into the

community, Respondents Joseph A. Down and

Denise Miles have constantly harassed him and

have call the police on him to have him arrested

an d wrongfully accused him in order to have him

evicted from the community. Complainant alleged

that the most recent instance of the police being

called was October 9, 2018 and complainant was

arrested. Complainant further alleged that he is

not allowed to use the computers outside the east

building, but it clearly states that all residents can

use the computers in any of the buildings.

Complainant also alleged he was forced to pay a

$75.00 fee to have the outside of his door area

cleaned this is an area where is commonly walked

by everyone and he feels it is not fa ir for him to

have to pay, he asked for a written request of the

payment but never received one, however he did

pay for the fee. Complainant also alleged he is not

allowed to get received any extra food like other

tenants do. Complainant alleged that on No vember

19, 2018 Respondent Joseph Down told him that he

would Ñevict him.Ò Respondents also referred to the

complainant as Ña dirty Indian.Ò Complainant

alleged he remains in good standing with

RespondentÔs rules and regulations, and that he

has not caused any issues in the community.

Complainant believes that Respondents are using

the police as a tool of harassment in an effort to

cause him to be evicted from the community. As

such, Complainant believes that Respondents are

subjecting him to a hostile livi ng environment in a

discriminatory manner based on his national origin

and disability.

On January 28, 2020, FCHR issued a ÑNotice of Determination of No

Cause,Ò finding that there was no reasonable cause to believe that

Respondents had committed a discrim inatory housing practice against

Mr. Kotecha.

On February 20, 2020, Mr. Kotecha filed a charge of housing

discrimination, through his submission of a Technical Assistance

Questionnaire for Housing Complaint, with FCHR, which stated, in part ,

and again, ve rbatim :

October 8, 2018. Joseph Downs called Sudhir

KotechaÔs sister. His sisterÔs name is Gita V.

Thakkar. Her phone numbers are [redacted].

Mr. Downs is the administrator at Asbury Arms.

Mr. Downs told her that Mr. S.K. was wrongly

taking social securit y and that Mr. Kotecha is

stealing small items. Mr. Downs threatened that he

could get Mr. Kotecha deported back to India and

Mr. Downs sent Mr. Kotecha to jail on 9 - Oct. - 2018

Tuesday with IL - LEGAL [sic] allegation of burglary

and theft. Downs enjoyed, tha t S.K. was hand -

cuffed.

November 23, 2018. Asbury Arms filed an eviction

against Mr. Kotecha based upon a false allegation

that he stole a chair. That complaint is filed in

Brevard County, and bears Case Number 2018 - CC -

054716. Based upon Mr. DownÔs commen ts on

October 8, 2018, I believe that this eviction was

based upon my ethnicity and nationality as a

person of Eastern Indian descent, and based upon

my status as an immigrant who was not born in the

United States. The eviction action was based upon

Joseph DownÔs illegal decision.

October 9, 2018. Asbury Arms, through Joseph

Downs gave me an eviction notice terminating my

tenancy. This notice was based upon a residentÔs

false claim that I stole a chair. Mr. Downs never

obtained my version of the events. If he had, I

would have told him that I thought the chair was

abandoned and free for the taking, and that I

returned the chair on the next day. Mr. Downs

never reported this good fact to police and courts.

I believe these actions were discriminatory based

u pon the content of Mr. DownsÔ conversation with

my sister, where he implied that a U.S. citizen who

was not born in the U.S. should not be able to

receive social security benefits. In that same

conversation, he also threatened to have me

deported, implying his belief that I should not be

allowed on U.S. soil because I am an immigrant

from India.

FCHR transmitted Mr. KotechaÔs charge, which it construed as a Petition

for Relief from Unlawful Housing Practice, to DOAH , which thereupon

assigned the undersigne d ALJ to conduct an evidentiary hearing.

On February 28, 2020, Respondents, which included Joseph Downs, as

well as Hank Keith 1 , filed a Notice of Acknowledgement of Filing and Notice

to the Court, which indicated that a named Respondent, ÑWestminster

Asb ury North, Inc. , Ò did not exist. Mr. Kotecha, who was proceeding pro se,

filed a Response that opposed RespondentsÔ contentions on the proper parties

to this proceeding. On March 10, 2020, the undersigned entered an Order

Correcting Case Caption, Renaming Respondents, and Extending Date to

Respond to Initial Order, which noted that FCHR, in transmitting the

Petition to the Division, made a scrivenerÔs error in naming the Respondent

as Westminster Asbury North, Inc., when it appeared that all previous

docume nts filed with FCHR indicated that the Respondents to this

proceeding were Westminster Services, Inc., Westminster Asbury/Asbury

Arms, Inc., Joseph Downs, and Denise Miles, and ordered that the Clerk of

the Division correct the case caption in this proceed ing accordingly.

The undersigned originally noticed this matter for final hearing on

April 16, 2020. On April 8, 2020, Mr. Kotecha, pro se, filed a Motion for

Continuance. On April 9, 2020, the undersigned entered an Order Canceling

Hearing, which request ed the parties to advise of available hearing dates no

later than April 16, 2020. On April 14, 2020, Respondents Westminster

Services, Inc., Westminster Asbury/Asbury Arms, Inc., and Joseph Downs,

filed a Notice of Non - Representation of Respondent Denise M iles and Motion

to Clarify, in which counsel for these named Respondents indicated that he

did not represent Respondent Denise Miles, who was a tenant of Asbury

Arms, Inc., in Cocoa, Florida. Mr. Kotecha, pro se, filed a Response on

April 15, 2020. The un dersigned thereafter noticed this matter for final

hearing on June 18, 2020.

1 It does not appear that Mr. Kotecha named or listed Hank Keith as a party in any of his

filings with FCHR. Accordingly, Mr. Keith has never been a pa rty to this proceeding.

On April 27, 2020, Mr. Kotecha, pro se, filed a Motion to Compel

Respondent Denise Miles , Thrift Store Operator, which contended that

Ms. Miles had not responded to discovery or provided available hearing dates.

The parties filed numerous discovery requests and objections. On June 2,

2020, the undersigned noticed a telephonic motion hearing for June 9, 2020.

On June 8, 2020, Mr. Kotecha, pro se, filed a Motion for Continuance, to

which the Respondents (with the exception of Ms. Miles) objected, on June 9,

2020. After conducting a telephonic hearing on June 9, 2020, the undersigned

entered an Order to Show Cause, noting that it did not appear that

Ms. Miles, a tenant at the same pro perty where Mr. Kotecha resides, was a

proper party in a n FHA case, ordering Mr. Kotecha to show cause why the

undersigned should not recommend that Ms. Miles be dismissed from this

matter, and further ordering that the undersigned would not rule on

Mr. Ko techaÔs pending Motion to Compel until after the time for responding

to the Order to Show Cause expired.

On June 12, 2020, the undersigned entered an Order Granting

Continuance, requesting availability in August 2020, to conduct the final

hearing in the m atter. On June 15, 2020, the undersigned entered an Order

Denying Motion to Compel, holding, in part, that Ms. Miles was not an

ÑagentÒ of Westminster Services, Inc., or Westminster Asbury/Asbury Arms,

Inc., and that the undersigned would recommend to FCHR that Ms. Miles be

dismissed from this matter as a party.

The undersigned, on July 2, 2020, then noticed this matter for final

hearing on August 26, 2020. Mr. Kotecha, pro se, filed a request for

continuance on July 2, 2020, and on July 13, 2020, filed a Motion on Hearing

Date and Telephonic Hearing I f Necessary. On August 5, 2020, the

undersigned entered an Order Granting Continuance and Rescheduling

Hearing by Zoom Conference, which noticed this matter for final hearing on

September 22, 2020.

On August 27, 2020, Mr. Vidoni filed a Notice of Appearance on behalf of

Mr. Kotecha, and, on September 4, 2020, filed a Notice of Dropping

Respondents Joseph Downs and Denise Miles. On September 18, 2020,

Respondents filed a Motion to Continue Final Hearing and Req uest for

Telephonic Hearing, which the undersigned granted that same date. The

undersigned conducted a telephonic status conference on September 22, 2020,

and on October 23, 2020, noticed this matter for final hearing on

December 10, 2020.

The undersigned conducted the final hearing on December 10, 2020, by

Zoom web - conference; as the parties were unable to complete the hearing on

that date, the undersigned continued the final hearing, which reconvened on

February 8, 2021, by Zoom web - conference. The under signed took official

recognition of RespondentsÔ Exhibits R1 through R3, which consisted of the

copies of the various pleadings related to Mr. KotechaÔs criminal matter,

including the Information/Charging document, the Probable Cause Affidavit,

and the Jud gment and Sentence, subject to PetitionerÔs hearsay objections

concerning their contents. Petitioner presented the testimony of: Gita

Thakkar; Jane Mickey Furman; Don Miles; Robert Tarasavage; Phyllis

Sandra Jeter; Rita Lynar; Elizabeth Butler; Joseph Down s; and

Mr. Kotecha. 2 The undersigned admitted PetitionerÔs Exhibits P1, P4 through

P7, and P11 into evidence. Respondents called no additional witnesses. The

undersigned admitted RespondentsÔ Exhibits R5, R6, R8 through R11, and

R14 into evidence.

On Feb ruary 5, 2021, Respondents filed a Motion for AttorneyÔs Fees,

pursuant to section 120.595 , contending that Mr. Kotecha participated in the

instant proceeding for an Ñimproper purpose.Ò RespondentsÔ Motion for

AttorneyÔs Fees requests that the undersigned determine that Mr. Kotecha

participated in the instant proceeding for an improper purpose, and

recommend an award of RespondentsÔ attorneyÔs fees and costs, payable by

Mr. Kotecha.

The complete four - volume T ranscript of the final hearing was filed with

DO AH on April 2, 2021. Petitioner and Respondents timely submitted

proposed recommended orders on April 12, 2021, which the undersigned has

considered in the preparation of this Recommended Order.

All statutory references are to the 2018 codification of th e Florida

Statutes, unless otherwise indicated.

2 On February 2, 2021 Ð after the first day of the final hearing Ð Petitioner filed a Second

Amended Witness and Exhibit List that, inter alia , added an additional witness who

Petitioner had not previously listed or disclosed, Barbara S hillings. On February 5, 2021,

Respondents filed a Motion to Strike, Motion to Quash, Motion for Protective Order and

Motion for Fees which, inter alia , argued that PetitionerÔs addition of Ms. Shillings as an

additional witness violated the undersignedÔs March 20, 2020, Order of Pre - hearing

Instructions, which required that the parties provide each other with a list of names and

addresses of their respective witnesses no later than seven days before the final hearing, and

that each party file a witness lis t with DOAH no later than five days prior to the final

hearing. The undersigned considered this issue at the beginning of the continuation of the

final hearing on February 8, 2021, and excluded Ms. Shillings as a witness from the final

hearing because her late addition violated the Order of Pre - hearing Instructions.

F INDINGS OF F ACT

1. Respondent Westminster Services , Inc., owns and operates several

retirement communities across Florida. The Westminster property in this

matter is Respondent , Westminster Asbury /Asbury A rms , which is located in

Cocoa, Florida. Mr. Downs is the administrator for WestminsterÔs Cocoa site,

and manages its facilities.

2. Mr. Kotecha is currently, and during the time period relevant to this

matter was, a resident of Asbury Arms North, a reside ntial complex within

the Westminster Asbury/Asbury Arms residential community. Within the

Asbury Arms North residential complex is a resident - operated thrift store,

which Respondents do not operate or control, and a Florida Room, which is a

common area wit h a table, vending machines, and other items.

3. Mr. Kotecha entered into a Lease Agreement with Asbury Arms, Inc.,

d/b/a Westminster Asbury South, on June 6, 2016. The Lease Agreement was

for a term of one year, and allowed for successive terms of one ye ar Ñunless

automatically terminated as permitted by paragraph 23 of this Agreement.Ò

Paragraph 23 of the Lease Agreement provides for ÑTermination of Tenancy.Ò

4. Mr. Kotecha was born in India, has brown skin, and immigrated from

India to the United States . He became a United States C itizen in 2010.

2018 Rocking Chair Incident

5. In July 2018, a maelstrom arose after Mr. Kotecha took a rocking chair

from the Florida Room of Asbury Arms North to his apartment, and then

returned it to the Florida Room the nex t day.

6. According to Mr. Kotecha, residents leave various items in the Florida

Room that are ÑfreeÒ for other residents to take. He also testified that the

thrift store sometimes places items that are too large for its sales room in the

Florida Room with price tags, but that if a price tag is not on the item, it is

considered to be ÑfreeÒ as well.

7. Mr. Kotecha testified that he noticed the rocking chair in the Florida

Room in July 2018, with no price tag, and decided to take it. After deciding

that it d id not fit well in his apartment, he returned it the next day.

8. Mr. Downs testified that he was on vacation in nearby Indialantic

during the time that Mr. Kotecha took the rocking chair. He stated that he

received a call from the Cocoa Police Department requesting video of an

unrelated purse snatching in a parking lot connected to the Westminster

Asbury/Arbury Arms residential community, so he returned to his office to do

so. The evidence presented at the final hearing showed that Respondents

operate nume rous cameras throughout the common areas of the Westminster

Asbury/Asbury Arms residential community.

9. While locating the purse snatching video to provide to the Cocoa Police

Department, Mr. Downs also noticed a post - it note that asked him to

determine w ho took the rocking chair, and when. Mr. Downs testified that he

Ñ burned Ò videos of the purse snatching and the taking of the rocking chair, to

compact discs, left the compact discs at the front desk for the Cocoa Police

Department, and returned to his vac ation.

10. Mr. Downs testified that he later learned that Denise Miles, who runs

the resident - operated thrift store, had initially asked for video of who took

the rocking chair, and that she had indicated that the Cocoa Police

Department requested a copy o f the video.

11. The undersigned has viewed the video of Mr. Kotecha taking the

rocking chair from the Florida Room in July 2018. The video shows

Mr. Kotecha, by himself, in the Florida Room, sitting on his walker, opposite

from the rocking chair. He take s several minutes to move over to the rocking

chair, sits and rocks in it, and then decides to place it on top of his walker. He

waits to exit the Florida Room, via an external exit to the parking lot, until

one or two individuals (whose legs can be viewed through a row of windows,

from the camera angle of the video) walk by the exit. He then wheels the

rocking chair through the parking lot (as opposed to the interior

entrance/exit), and, presumably, through another entrance to the building,

and through a h all to the elevator. He parks the walker/rocking chair around

the corner from an elevator, and then proceeds to summon the elevator. Once

the doors open, he retrieves the walker/rocking chair from around the corner,

places it on the elevator, and, ultimate ly, takes it to his apartment on an

upper floor. Mr. Kotecha appears to take an overly - cautious, and circuitous,

route to transport the rocking chair from the Florida Room to the hallway

next to the elevator, and ensures that the rocking chair is not visib le from the

elevator (or anyone entering or exiting it) before he places it on the elevator.

12. In August 2018, the Brevard County Sheriff Ô s office arrested

Mr. Kotecha and charged him with burglary of a structure, and petit theft,

related to the taking o f the rocking chair. Mr. Downs testified that neither he,

nor any agent of Respondents, filed a criminal complaint concerning

Mr. Kotecha. However, when law enforcement initially arrived at Asbury

Arms North to arrest Mr. Kotecha and, being unable to locat e him, left,

Mr. Downs subsequently called them back to inform them that Mr. Kotecha

was at his apartment, which eventually led to his arrest.

13. After Mr. KotechaÔs arrest, Mr. Downs testified that he sent staff

members to his apartment to Ñmake sure the reÔs no running water, make

sure that the air conditionerÔs set to the right temperature. And we do that

for precautionary measures to protect our property and our È residents.Ò

14. The staff members took numerous photographs of Mr. KotechaÔs

apartment, wh ich Mr. Downs described as Ñdeplorable.Ò

15. The undersigned has reviewed the photographs taken of Mr. KotechaÔs

apartment. The photographs depict: a kitchen that has items piled up on

every empty counter space, a refrigerator/freezer that appears over pa cked

with various food items that would make it difficult for the door to close, a

sink full of various food containers and at le a st one piece of fruit, and an oven

with newspaper inside of it; a cluttered living room with items and trash,

piled considerab ly; a bedroom with items piled on the bed and every available

surface; various areas with extension cords and power strips that have

multiple items plugged into them; a bathroom with trash piled up, and

multiple partially - filled buckets near the toilet and inside the shower stall.

Based on these photographs, the apartment appeared unsanitary, difficult to

navigate, and , at least based on the paper in the oven, a fire hazard.

16. Soon after Mr. KotechaÔs arrest, Mr. Downs contacted Mr. KotechaÔs

sister, Ms. Thakkar, who he provided as an emergency contact to

Respondents, to inform her of the arrest. Ms. Thakkar testified that

Mr. Downs made numerous threatening and insensitive remarks related to

Mr. KotechaÔs ethnicity and immigration status during this telep hone call;

Mr. Downs credibly denied making such remarks.

17. Ms. Thakkar assisted with paying bond for Mr. KotechaÔs release from

jail. Mr. Kotecha returned to his residence at Asbury Arms North after his

arrest. He subsequently pleaded guilty to a lesser (misdemeanor) crime, paid

a fine, and his adjudication was withheld.

Notice of Termination of Lease Agreement and Complaint

18. On October 9, 2018, Respondents delivered Ð by hand and regular

mail Ð a letter, signed by Mr. Downs, that served as a 30 - day notic e to

Mr. Kotecha that Respondents were terminating Mr. KotechaÔs lease, and

that he needed to vacate his apartment by November 9, 2018. The October 9,

2018, letter further stated:

Your Lease Agreement is being terminated

pursuant to paragraph 8(b)(2) of the Lease

Agreement. Paragraph 8(b)(2) allows Asbury Arms

Inc. to terminate the Lease Agreement for your

material noncompliance with the Lease Agreement.

By signing the Lease Agreement you agreed to be

bound by the Rental Lease Agreement and House

Rules th at are incorporated into the lease as well

as the terms of the lease.

• Unsanitary health conditions of your apartment

after being given multiple warnings that dates back

to October 3, 2016

• Storage of bicycles in apartment after numerous

warnings not to do so

• Law enforcement activity including his arrest

for burglary and theft

• Theft of personal property owned by someone

other than himself

• Fire safety concerns by placing papers in oven

Your actions, as outlined above, constitute

continued lease violations. A s such, Asbury Arms

Inc. dba Westminster Asbury is forced to terminate

your Lease Agreement. If you remain in the unit

after the specified termination date of November 9,

2018, Asbury Arms Inc., dba Westminster Asbury

may seek to enforce the termination of the Lease

Agreement in court. You have ten (10) days in

which to discuss the termination of your Lease

Agreement with Westminster Asbury which begins

the earlier of 1) the date the notice was hand

delivered to the unit or 2) the day after this notice

was mailed. Moreover, if a judicial proceeding for

eviction is instituted you may present defenses, if

any, therein.

19. In November 2018, Asbury Arms , Inc., filed a Complaint for eviction in

the County Court of Brevard County, Florida. In December 2018, Asbu ry

Arms, Inc., filed an Amended Complaint for eviction. Based on the testimony

and evidence presented at the final hearing, this amended complaint remains

pending.

Mr. KotechaÔs Account of the 2018 Rocking Chair Incident and Termination

of Lease Agreement

20. Mr. Kotecha testified that he saw the rocking chair in the Florida

Room in July 2018, and as there was no price tag on it, he took it to his

apartment. The next day, he decided that he did not have enough room in his

apartment, and returned it to the F lorida Room. He testified that within this

24 - hour period, Denise Miles became worried that the rocking chair was

missing, determined that Mr. Kotecha had taken it, called the police, and

filed a criminal complaint. On cross - examination, when asked how he knew

the rocking chair was free for the taking, Mr. Kotecha answered:

Because it was lying in Florida room without any

price tag of thrift store. And even if it is thrift store

price or anything, thrift store is totally illegally so

the ownership of Dee M iles is illegal, so the

complaint is totally illegal. Everything is illegal.

And I was put to jail also totally illegally.

21. Despite a seeming acknowledgment that Denise Miles, and not

Respondents, filed the criminal complaint that led to his 2018 arres t for the

taking of the rocking chair, Mr. Kotecha later testified:

Joseph Downs is mastermind. He is Supreme Boss.

And because of that, every staff member is afraid of

him and whatever he says Ï Joseph Down says, the

staff has to do that. Even if he or s he doesnÔt like to

do that. Joseph Downs inspired, not only inspired,

but encouraged Dee Mil e s to write this Ï to call the

police and write a complaint about the stealing of

that chair.

Q. How do you know that?

* * *

There is no authentic proof of it, b ut I believe

strongly that.

22. In support of Mr. KotechaÔs testimony, Mr. Kotecha presented the

testimony of fellow resident Ms. Lynar, who offered numerous photographs

that she took of the Florida Room which showed various items that were Ñfor

saleÒ wit h price tags. She also testified that itÔs not always clear whether

something is free, or whether it belongs to the thrift store, as it depends on

whether ÑDee and Don Miles [who operate the thrift store] want to take

possession of it.Ò She testified that the rocking chair originally had a price tag

of $35, but at some point, the price tag had been removed, which she believed

meant that the rocking chair was free. 3

23. In describing the day he was arrested, Mr. Kotecha again laid the

blame with Mr. Downs, c laiming he concocted the following story to lure him

from to Asbury Arms North so that the Cocoa Police Department could arrest

him:

I got up in the morning and then I started to work

to zone clean my apartment and then suddenly I

remembered, oh I had to go to PeopleÔs Church for

prayer and lunch.

So I Ï I left the room Ï the apartment halfway of

zoning, take shower and shave my face and went to

Peoples Church for prayer and lunch.

And then, when I went there, Joseph Downs

totally, illegally lied to me t hat there are eight

peoples Ï residents who will be given last one yearÔs

rent back reimbursed and you will get Ï now, come

3 The undersigned notes that Ms. Lynar has filed previous housing discrimination complaints

against Respondents, one of which was heard by the undersigned last year. First, she filed a

charge of discrimination against Respondents in 2014, which was assigned DOAH Case

No. 15 - 2796, which ultimately resolved between the parties. Then, in 2018, ALJ Bruce

Culpepper conducted a two - day final evidentiary hearing in DOAH Case No. 18 - 1314, and

issued a R ecommended Order that concluded that Ms. Lynar failed to meet her burden of

proving that Respondents committed a discriminatory housing practice in violation of the

FHA, and recommended that FCHR dismiss Ms. LynarÔs Petition for Relief. On October 1,

2019, FCHR entered a Final Order that adopted ALJ CulpepperÔs Findings of Fact and

Conclusions of Law, and dismissed Ms. LynarÔs Petition for Relief. See Lynar v. Westminster

Ret. Communities Foundation, Inc., et al., Case No. 18 - 1314 (Fla. DOAH July 10, 2019;

FCHR Oct. 1, 2019). Then, in 2019, Ms. Lynar filed yet another charge of housing

discrimination (retaliation), and the undersigned conducted a two - day final evidentiary

hearing in DOAH Case No. 20 - 1080 . T he undersigned issued a Recommended Order that

concl uded that Ms. Lynar failed to meet her burden of proving that Respondents committed a

discriminatory housing practice in violation of the FHA, and recommended that FCHR

dismiss Ms. LynarÔs Petition for Relief. On March 31, 2021, FCHR entered a Final Order that

adopted the undersigned ALJÔs Findings of Fact and Conclusions of Law, and dismissed

Ms. LynarÔs Petition for Relief. See Lynar v. Westminster Communities, Inc., et al., Case

No. 20 - 1080 (Fla. DOAH Jan. 4, 2021; FCHR Ma r. 31, 2021). At the time of t he most recent

Lynar final hearing, Ms. Lynar was also the subject of an eviction action by Respondents.

The undersigned has considered Ms. LynarÔs adverse position to Respondents in these

previous matters, as well as her lack of success in such matters, i n assessing her credibility

as a witness in this proceeding.

in here, you will get Ï you will be getting free food

every day or money for the food every day.

It was totally made story by Joe Downs. Totally

lying and the Ï by telling me this thing, he wanted

me to wait in the reception area. He told me, can

you wait here. IÔm preparing your paper. You are

the last eight Ï eight men Ï eight residents.

And then he Ï he never prepared any paper, never

took my sign and there was no benefits like this

and Ï and he called BCSO. Brevard County

SheriffÔs Office.

And they came and they handcuffed me and take

me to jail. And even I didnÔt know why I Ï I have

been taken to jail. On the way, I asked them Ï the

police Ï the sheriff why I am taken to jail.

Then he told me that, you entered in a prohibited

area and you steal some Ï some furniture. ThatÔs

why.

24. Mr. Kotecha testified that the morning of his arrest, he had started

cleaning his apartment, bu t was interrupted by attending a religious service

and, ultimately, his arrest. He explained that the multiple buckets in his

bathroom (one of which contained a floating comb) were full of hot water for

cleaning. He explained that the reason for news paper in his oven was

because he had no room at this dining table to eat that day; instead, he used

the door to the oven as a makeshift tabletop, placing the paper underneath

his food. As he was in a hurry to leave, he testified that he did not have time

to remo ve the paper from the oven. He stated that the multiple items in the

sink were actually soaking with water, which would make them easier to

clean later on.

Other Incidents Mentioned in Termination

2 5 . The October 9, 2018, letter that served as a 30 - day no tice of

termination of Mr. KotechaÔs lease agreement referenced two additional

reasons for the termination: (a) u nsanitary health conditions of your

apartment after being given multiple warnings that dates back to October 3,

2016 ; and (b) storage of bicycl es in apartment after numerous warnings not to

do so.

26. With respect to the multiple warnings of unsanitary health conditions,

Respondents introduced: (a) an October 3, 2016, Ten Day Notice of Non -

Compliance with an Opportunity to Cure, which stated that Mr . Kotecha

violated his Lease Agreement for ÑHealth and safety violations. Specifically

unsanitary health conditions and clutter which poses health and safety

concernsÈ.Ò; (b) a March 9, 2017, Ten Day Notice of Non - Compliance with an

Opportunity to Cure, which stated Mr. Kotecha had violated his Lease

Agreement for the same reasons stated in the October 3, 2016, Ten Day

Notice; (c) a January 26, 2018, letter entitled ÑHallway Carpet & Lease

Violations,Ò which stated that the carpet in the hallway outside of his

apartment will be cleaned by staff, as it is the property of Westminster

Asbury, and stated that ÑMr. Kotecha was placed on probation for any further

material and or non - material violations of his rental lease agreement.Ò; and

(d) a February 19, 201 8, Ten Day Notice of Non - Compliance with an

Opportunity to Cure, which stated that Mr. Kotecha had violated the ÑHouse

Rules , Ò which are part of the Lease Agreement and which forbade the storage

of bicycles in apartments, but in the designated bicycle park ing area, and

which further stated that Mr. Kotecha continued to store/chain his bicycles to

stop signs or bus stop signs, as well as poles within the residential area.

27. Mr. Downs stated that Respondents had issued multiple previous

warnings to Mr. Kote cha concerning unsanitary health conditions in his

apartment. Mr. Downs testified that Mr. Kotecha had damaged the carpet

outside of his apartment and tried to clean it, which resulted in more

damage, and for which Respondents charged Mr. Kotecha a $75 cle aning fee.

28. Mr. Kotecha testified that Mr. Downs was Ñalready biased againstÒ

him when Respondents issued the various notices of violation because

Mr. Downs had warned Mr. Kotecha to stop taking multiple ÑfreeÒ loaves of

bread that were occasionally lef t in the Florida Room for residents by some

other organization, and generally denied that his apartment ever met the

definition of being unsanitary. With respect to the carpet cleaning outside of

his apartment, Mr. Kotecha testified that he was in the proc ess of cleaning it,

and questioned why Respondents charged him $75 to clean it if ÑitÔs the job of

Westminster Asbury.Ò

29. With respect to the storage of bicycles, Mr. Downs stated that it

involved an Ñissue of his chaining bicycles to light poles and dif ferent things

around our property here[,]Ò which he considered a Ñfinal warning.Ò

Mr. Kotecha testified that he locked his bikes to these poles because they

were closer to the apartment building, and it was difficult for him to walk

between the designated bicycle area and the apartment building.

Mr. Kotecha testified that Mr. Downs accommodated Mr. Kotecha and

allowed him to lock his bike on nearby poles; Mr. Downs denied doing such an

accommodation , but admitted that Mr. Kotecha continues to lock his bik e on

nearby poles .

Evidence of Other Residents Taking Property from Florida Room

30. Mr. Kotecha attempted to introduce evidence of residents taking

property that did not belong to them, and who did not receive termination

notices from Respondents, to show that Mr. Kotecha was treated differently.

Much of this type of evidence concerned residents taking other residentsÔ

walkers. However, the recollection of these witnesses was less than clear.

31. Ms. Furman (white female), a fellow resident of Asbury Arms North,

could offer no recollection of walker s being taken from the Florida Room on

August 24, 2019, even after being shown video purporting to establish this

point.

32. Similarly, fellow resident Mr. Miles (the husband of the thrift store

operator Denise Miles, and a white male), testified, when shown a video from

August 26, 2019, that he took a vacant walker from the Florida Room.

Mr. Miles also testified that the thrift shop Ñloans outÒ walkers regularly, and

places them for sale in the Florida Room, wit h price tags.

33. Ms. Jeter (white female), another fellow resident, testified that, in

August 2020, she asked Mr. Miles if she could purchase a walker from the

thrift store, which was placed in the Florida Room along with another

walker. Mr. Miles agreed, but also agreed that Ms. Jeter could take it with

her and pay the thrift store later. Later that day, Ms. Jeter received a call

from the front desk asking her to return the walker, as it belonged to

someone else and was not for sale, which she did. Ms. Je ter was not arrested

or prosecuted for stealing the walker, and Respondents did not terminate

Ms. J eterÔs lease agreement because she mistakenly took a walker that she

believed she could purchase from the thrift store.

34. Ms. Butler (African American fema le) testified that in August 2020,

she left her walker in the Florida Room, and when she returned, it was

missing. She testified that she reported this to the front desk, and after

checking the security camera in the Florida Room, determined who it was

(Ms . Jeter), and returned it to Ms. Butler that same day. Ms. Butler did not

report this incident to the police.

35. Ms. Lynar (white female) testified that she kept a walker in the

Florida Room, where it was Ñfolded upÒ and placed next to the soda machine.

S he testified that in August 2019, it went missing, and that she testified that

Denise Miles, Mr. Miles, and Ms. Furman took it. She testified that the

walker was returned, but that RespondentsÔ maintenance staff subsequently

took it, and it has not been re turned.

36. Mr. Tarasavage, a maintenance worker for Respondents, testified that

he had no recollection of taking Ms. LynarÔs walker from the Florida Room

and disposing of it. Mr. Tarasavage testified that he received no complaints,

and was not arrested, f or re moving a walker from the Florida Room.

Theft of Mr. KotechaÔs bike

37. On September 26, 2020, another resident, Barbara Shillings (white

female), allegedly took one of Mr. KotechaÔs bikes from the area where he

normally parks his bike. Mr. Downs beli eved that Ms. Shillings was being

ÑmischievousÒ in doing so.

38. However, Mr. Kotecha complained about this incident to police

officers, who were at Asbury Arms North to deal with a resident experiencing

dementia issues. The police officers subsequently reviewed video of this

incident, provided by Mr. Downs. Mr. Downs testified that in late January

2021, Ms. Shillings was charged criminally for the taking of Mr. KotechaÔs

bicycle.

39. Mr. Downs testified that this incident differed from Mr. KotechaÔs in

that Ms. Shillings was not arrested and taken out of the building by police,

and because her apartment was never in an unsanitary condition (although it

had failed an annual inspection). Mr. Downs further testified that because he

learned of the criminal c harges some 75 days after the incident, he was

unable to issue a notice of termination, as the 45 - day window for initiating an

eviction had expired. Mr. Downs also stated that Respondents are Ñwaiting to

see what the courtÔs going to do[]Ò in Ms. Shillings Ôs criminal case.

Ultimate Finding of Fact

40. Mr. Kotecha failed to provide any credible evidence that RespondentsÔ

decision to issue the Notice of Termination, and subsequently commence

eviction proceedings in county court, was discriminatory, in violati on of the

FHA. The undersigned has considered the testimony and credibility of

Mr. Kotecha, who claimed that Ñeverything is illegalÒ when asked about his

taking of the rocking chair, that Mr. Downs is a ÑmastermindÒ and Ñsupreme

bossÒ who orchestrated his arrest, while admitting he had no proof , that he

was Ñzone cleaningÒ an apartment that appeared to the undersigned to be

unsanitary at the time of his arrest, and that Mr. Downs concocted a story of

free rent to lure Mr. Kotecha out of his apartment and t o a common area in

Asbury Arms North to be arrested, as well as the supporting testimony of

Ms. Lynar, who has brought numerous unsuccessful claims against

Respondents under the FHA, in arriving at this finding. The undersigned has

also considered Mr. Kote chaÔs behavior in the video of him taking the rocking

chair Ð in which he takes a route through the external parking area (but

waits for people in the parking lot to leave before doing so), through a

different entrance/exit to the elevator, where he leaves t he rocking chair in

an area of the hall so that individuals entering or exiting the elevator cannot

see it.

41. The undersigned has also considered the testimony and credibility of

those witnesses who testified regarding Mr. KotechaÔs allegation that other

similarly - situated tenants of other nationalities took items from the Florida

Room or other areas that did not belong to them, and suffered no

consequences from Respondents. However, two witnesses Ð Ms. Furman and

Mr. Miles Ð had no recollection of an unlawfu l taking of a walker happening,

even when shown videos of alleged incidents. The testimony of Ms. Jeter and

Ms. Butler reveal a misunderstanding of whether a walker that belonged to

Ms. Butler was actually the property of the thrift store. Additionally, th e

undersigned finds that walkers are commonplace in a retirement community

such as Asbury Arms North, and as much of the testimony demonstrated that

the walkers used in this community looked similar, if not identical, it is

understandable that person in a community of senior citizens might

mistakenly take another personÔs walker.

42. With respect to the late - introduced evidence concerning Ms. ShillingÔs

taking of Mr. KotechaÔs bike, the undersigned finds that much of the

testimony offered on this subject is hearsay, which was not supported by any

other documentary evidence, but was addressed by Mr. Downs. Mr. Downs

testified that Ms. Shillings was not arrested and led out in handcuffs at

Asbury Arms North, did not receive prior notices of termination for

uns anitary conditions in her apartment (although she had been cited during

annual inspections, which she corrected), and that her notice of criminal

charges (which had not been resolved at the time of th is hearing) came after

Mr. Downs had the legal opportuni ty to commence eviction proceedings.

Mr. Downs also testified that Respondents intended to await the outcome of

her criminal matter before deciding any further action. Thus, Ms. Shillings is

not a fair comparator.

43. The undersigned also finds that, while Mr. KotechaÔs testimonial

claims stretch the bounds of credulity, there was no evidence presented to

demonstrate that his participation in this proceeding was primarily to

harass, or to cause unnecessary delay, or for a frivolous purpose, or to

needlessly increase the cost of litigation.

C ONCLUSIONS OF L AW

44. DOAH has jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569, 120.57(1), and 760.35(3)(b).

45. The FHA makes it unlawful to discriminate again st any person Ñin the

terms, conditions, or privileges of sale or rental of a dwelling, or in the

provision of services or facilities in connection therewith, because of race,

color, national origin, sex, handicap, familial status, or religion.Ò £ 760.23(2 ),

Fla. Stat.

46. The FHA is patterned after Title VII of the Civil Rights Act of 1968, as

amended by the Fair Housing Act of 1988. As such, discriminatory acts

prohibited under the federal Fair Housing Act are also prohibited under the

FHA, and federal ca se law interpreting the federal Fair Housing Act is

applicable to proceedings brought under the FHA. See Brand v. Fla. Power

Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994)(noting that Ñthe Florida

statute will take on the same constructions as placed on it s federal

proto t ype.Ò).

47. In proceedings brought under the FHA, the complainant has the

burden to prove a prima facie case of discrimination by a preponderance of

the evidence. § 760.34(5), Fla. Stat.; Fla. DepÔt of Transp. v. J.W.C. Co., 396

So. 2d 778 (Fla. 1st DCA 1981). A Ñpreponderance of the evidenceÒ means the

Ñgreater weightÒ of the evidence, or evidence that Ñmore likely than notÒ tends

to prove the fact at issue. Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

48. Mr. KotechaÔs allegations amount to a claim of disparate treatment in

the terms of his rental ( i.e., RespondentsÔ notice of termination of the lease,

and how Respondents treated other tenants).

49. To establish a prima facie case of disparate treatment, Mr. Kotecha

must present evi dence that he was treated differently than similarly - situated

tenants. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir.

2008).

50. Regarding his disparate treatment claim, Mr. Kotecha may establish a

violation of the FHA through either di rect evidence, or through the burden -

shifting framework of McDonnell Douglas Corp oration v. Green, 411 U.S. 792

(1973). See Noel v. Aqua Vista Townhomes Condo. AssÔn, Inc. , 2019 WL

4345903 at *3 (S.D. Fla. Sept. 12, 2019). Direct evidence is that which, if

believed, would prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany, 247 F.3d 1172, 1182

(11th Cir. 2001). ÑDirect evidence encompasses conduct or statements that

both (1) reflect directly the alleged discriminatory attitude, and (2) bear

directly on the contested [housing] decision.Ò Noel, 2019 WL 4345903 at *3.

As to the nature of the evidence, Ñonly the most blatant remarks, whose

intent could be nothing other than to discriminate È will cons titute direct

evidence of discrimination.Ò Damon v. Fleming Supermarkets of Fla., Inc.,

196 F.3d 1354, 13589 (11th Cir. 1999)(citations omitted).

51. Mr. Kotecha presented no direct evidence of discrimination by

Respondents related to, or affecting the ter ms of, his tenancy. No admissible

evidence or testimony established that Respondents exhibited the requisite

discriminatory intent necessary for such a showing. 4

52. Under the McDonnell Douglas framework, Mr. Kotecha must show

that: (a) he is a member of a protected class; (b) he suffered an injury because

of the alleged discrimination; and (c) based on his claimed class of national

origin, he was denied the provision of services protected by the FHA , which

were available to other tenants who were not India n or of Indian national

origin. If Mr. Kotecha meets this burden, then an inference arises that his

challenged action was motivated by discriminatory intent, and the burden

shifts to Respondents to articulate a legitimate, nondiscriminatory reason for

its action. If Respondents successfully articulate such a reason, then the

burden shifts back to Mr. Kotecha to show that the proffered reason is really

pretext for unlawful discrimination. See Schoenfeld v. Babbitt , 168 F.3d 1257,

1267 (11th Cir. 1999). If Mr . Kotecha fails to establish a prima facie case of

discrimination, the matter ends. See NatÔl Indus., Inc. v. CommÔn on Human

Rel. , 527 So. 2d 894 (Fla. 5th DCA 1988).

53. Mr. Kotecha established the first and second elements of a prima facie

case: he is a member of a protected class, as his national origin is Indian; and

Respondents subjected him to an adverse action when it issued the Notice of

Termination, and commenced eviction proceedings in county court . See

Neudecker v. Boisclair Corp. , 351 F.3d 361, 363 - 64 (8th Cir. 2003)(holding

that threats of eviction are sufficient to allege an adverse action under the

Federal Fair Housing Act).

54. However, the undersigned concludes that Mr. Kotecha presented no

credible or persuasive evidence that Respondents denied the provision of

services protected by the FHA, or treated him differently than other

similarly - situated tenants, based on his national origin. The credible evidence

4 Though Mr. Kotecha alleged that Mr. Downs called him a Ñdirty IndianÒ and threatened to

deport him, those allegations were not substantiated, and were vigorously, and credibly,

denied by Mr. Do wns.

presented demonstrated that Mr. Kotecha had received numerous notices of

noncompli ance, was arrested on - site for theft of property (to which he

ultimately pled guilty to a lesser offense), and left his apartment in an

unsanitary condition, all of which were violations of his Lease Agreement.

55. Mr. KotechaÔs claim for discrimination/d isparate treatment also fails,

even if the undersigned were to assume he established a prima facie case of

FHA discrimination, thus creating a presumption of housing discrimination.

The burden would then shift to Respondents to articulate a legitimate, non -

discriminatory reason for its actions. See Bone v. Vill. Club, Inc., 223 F. Supp.

3d 1203, 1218 (M.D. Fla. 2016). The reason for RespondentsÔ decision should

be clear, reasonably specific, and worthy of credence. See DepÔt of Corr. v.

Chandler , 582 So. 2d 1183, 1186 (Fla. 1st DCA 1991). The burden on

Respondents is one of production, not persuasion, to demonstrate to the

undersigned that its action was non - retaliatory. See Wilson v. B/E Aerospace,

Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). This burden of production is

Ñexceedingly light.Ò Holifield v. Reno , 115 F.3d 1555, 1564 (11th Cir. 1997),

abrogated on other grounds, Lewis v. City of Union , 918 F.3d 1213 (11th Cir.

2019)( en banc ).

56. If Respondents meet this burden, the presumption of discrimination

disappears. The burden then shifts back to Mr. Kotecha to prove that

RespondentsÔ proffered reason was not the true reason, but merely a ÑpretextÒ

for discrimination. See Bone, 223 F. Supp. 3d at 1218.

57. To satisfy this final step, Mr. Kotecha must show Ñeither directly by

persuading the court that a discriminatory reason more likely motivated

[Respondents] or indirectly by showing that [RespondentsÔ] proffered

explanation is not worthy of credence.Ò Texas DepÔt of Community Affairs v.

Burdine , 450 U.S. 2 48, 256 (1981). Mr. Kotecha must prove that the reasons

articulated were false and that discrimination was the real reason for the

action. See City of Miami v. Hervis, 65 So. 3d 1110, 1117 (Fla. 3d DCA 2011).

58. For the same reasons as concluded in paragr aph 54 above,

Respondents articulated legitimate, nondiscriminatory, and nonretaliatory

reasons for its decision to issue the Notice of Termination and commence

eviction proceedings.

59. The undersigned further concludes that Mr. Kotecha failed to meet his

burden of proving pretext. The competent substantial evidence presented at

the final hearing does not support a conclusion that RespondentsÔ explanation

for issuing the Notice of Termination, or commencing eviction proceedings,

was false or not worthy of credence.

60. Mr. KotechaÔs use of comparators also fails. In Mac Papers, Inc. v.

Boyd, 304 So. 3d 406, 409 (Fla. 1st DCA 2020), the First District recently held

that comparators must be Ñsimilarly situated in all material respects.Ò

(quoting Lewis v. City of Union City, Ga . , 918 F.3d 1213, 1218 (11th Cir.

2019)( en banc )). With respect to the unpersuasive testimony concerning the

taking of other residentsÔ walkers, there was no competent substantial

evidence presented at the final hearing that the individua ls who mistakenly

took walkers were the subject of arrest, had received notices of previous

violations of their lease agreements, or were found to have unsanitary

conditions in their apartments. With respect to the testimony concerning the

taking of Mr. Ko techaÔs bike by Ms. Shillings, again, there was no competent

substantial evidence presented that Ms. Shillings believed the bike to be free

for the taking, that she had been arrested at Asbury Arms North, that she

had received previous notices of violation s of her lease agreement, or was

found to have unsanitary conditions in her apartment. See I d. (Ñ[t]hough fact -

finders are typically given much deference in determining whether a

comparator is similarly - situated, the absence of evidence showing a similar

d isciplinary record can render a discrimination claim nonactionable as a

matter of law.Ò). In fact, according to Mr. Downs, Respondents are monitoring

her criminal case and will act accordingly.

61. Mr. Kotecha failed to meet his burden to establish a prim a facie case

of discrimination or disparate treatment under the FHA. Mr. Kotecha failed

to present persuasive evidence that any actions or inactions by Respondents

were influenced by his national origin.

62. Section 120.595 , entitled AttorneyÔs Fees, provi des, in pertinent part:

(1) C HALLENGES T O A GENCY A CTION P URSUANT T O

S ECTION 120.57(1). Ð

(a) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or costs in

administrative proceedings.

( b) The final order in a proceeding pursuant to s.

120.57(1) shall award reasonable costs and a

reasonable attorneyÔs fee to the prevailing party

only where the nonprevailing adverse party has

been determined by the administrative law judge to

have particip ated in the proceeding for an improper

purpose.

(c) In proceedings pursuant to s. 120.57(1), and

upon motion, the administrative law judge shall

determine whether any party participated in the

proceeding for an improper purpose as defined by

this subsecti on. In making such determination, the

administrative law judge shall consider whether

the nonprevailing adverse party has participated in

two or more other such proceedings involving the

same prevailing party and the same project as an

adverse party and in which such two or more

proceedings the nonprevailing adverse party did

not establish either the factual or legal merits of its

position, and shall consider whether the factual or

legal position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be rebuttably

presumed that the nonprevailing adverse party

participated in the pending proceeding for an

improper purpose.

(d) In any proceeding in which the administrative

law judge determines that a party participated in

the proceeding for an improper purpose, the

recommended order shall so designate and shall

determine the award of costs and attorneyÔs fees.

(e) For purpose of this subsection:

1. ÑImproper purposeÒ means participation in a

proceed ing pursuant to s. 120.57(1) primarily to

harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost

of litigation, licensing, or securing the approval of

an activity.

2. ÑCostsÒ has the same meaning as the costs

allo wed in civil actions in this state as provided in

chapter 57.

3. ÑNonprevailing adverse partyÒ means a party

that has failed to have substantially changed the

outcome of the proposed or final agency action

which is the subject of a proceeding. In the even t

that a proceeding results in any substantial

modification or condition intended to resolve the

matters raised in a partyÔs petition, it shall be

determined that the party having raised the issue

addressed is not a nonprevailing adverse party. The

recomme nded order shall state whether the change

is substantial for purposes of this subsection. In no

event shall the term Ñnonprevailing partyÒ or

Ñprevailing partyÒ be deemed to include any party

that has intervened in a previously existing

proceeding to suppo rt the position of an agency.

63. Based on the evidence and testimony presented, which, as the

undersigned found with respect to Mr. Kotecha, lacked credibility, the

undersigned concludes that Mr. Kotecha, who is the nonprevailing adverse

party, did not p articipate in this proceeding for an improper purpose, and

thus should not be responsible for RespondentsÔ attorneysÔ fees and costs for

this proceeding pursuant to section 120.595. The undersigned notes that

Mr. Kotecha was pro se when he filed a charge w ith FCHR, and when he filed

a Petition for Relief. He retained counsel after FCHR referred this matter to

DOAH, and his counsel facilitated the presentation of testimony and evidence

that the undersigned cannot conclude was Ñprimarily to harass or to cause

unnecessary delay or for frivolous purpose or to needlessly increase the cost

of litigation[,]Ò as required under section 120.595(1).

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMEND S that: (a) the Florida Commission on

Human Relations issue a final order dismissing Sudhir KotechaÔs Petition for

Relief; and (b) deny RespondentsÔ Motion for AttorneyÔs Fees, filed

February 5, 2021, pursuant to section 120.595, Florida Statutes.

D ONE A ND E NTER ED this 3 r d day of May, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 3rd day of May, 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Henry Keith

Florida Commission on Human Relations Presbyterian Retirement Communities, Inc.

4075 Esplanade Way , Room 110 d/b/a Westminster Towers

Tallahassee, Florida 32399 - 7020 80 West Lucerne Circle

Orlando, Florida 32801

Stephen G. Henderson, Esquire Nicholas A. Vidoni, Esquire

Henderson Legal Group Vidoni Law PLLC

5419 Vi llage Drive 959 North Cocoa Boulevard , Unit 5

Viera, Florida 32955 Cocoa, Florida 32922

Denise Miles Joseph Down

1200 Clearlake Road 1430 Dixon Boulevard

Cocoa, Florida 32922 Cocoa, Florida 32922

Maria Vaeth Henderson, Esquire Cheyanne Costilla, General Counsel

Henderson Legal Group Florida C ommission on Human Relations

5419 Village Drive 4075 Esplanade Way , Room 110

Viera, Florida 32955 Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.