21-000859 April Dukes vs. Brennan Realty, Inc., Joseph P. Brennan, Kathleen Brennan, And Thomas Brennan Status: Closed Recommended Order on Monday, June 7, 2021.

Summary: Petitioner's housing discrimination complaint and Petition for Relief were untimely. Recommended dismissal of Petition for Relief.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A PRIL D UKES ,

Petitioner ,

vs. Case No. 21 - 0859

B RENNAN R EALTY , I NC ., J OSEPH P.

B RENNAN , K ATHLEEN B RENNAN , A ND

T HOMAS B RENNAN ,

Respondents .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge Darren A. Schwartz of

the Division of Administrative Hearings (ÑDOAHÒ) for final hearing by Zoom

conference on May 10, 2021.

A PPEARANCES

For Petitioner: April Denis e Dukes, pro se

937 Southwest 5th Street, Apartment 4

Miami, Florida 33130

For Respondent: Vanessa Marie Bertran, Esquire

Vanessa M. Bertran , P . A .

55 Alhambra Plaza , Suite 800

Coral Gables, Florida 33134

S TATEMENT OF T HE I SSUE S

The issues for determination are: (1) whether PetitionerÔs housing

discrimination complaint alleging handicap discrimination against

Respondents in violation of the Florida Fair Housing Act (ÑFFHAÒ), chapter

760, part II, Florida Statutes (2020), was timely filed with the Florida

Commission on Human Relations (ÑFCHRÒ); and (2) whether PetitionerÔs

Petition for Relief was timely filed with FCHR.

P RELIMINARY S TATEMENT

Petitioner, April Dukes (ÑPetitionerÒ), filed a fair housing discrimination

complaint with FCHR on October 29, 2020. FCHR is a state agency charged

with investigating fair housing discrimination complaints. After its

investigation, FCHR issued a ÑNotice of Determination (No Cause)Ò and

ÑDetermination (Lack of Jurisdiction). Ò The determinati on for lack of

jurisdiction concluded that PetitionerÔs housing discrimination complaint was

untimely filed with FCHR ; and , therefore, FCHR did not have jurisdiction

over PetitionerÔs complaint.

Dissatisfied with FCHRÔs determinations, Petitioner filed a Petition for

Relief. On February 26, 2021, FCHR referred this matter to DOAH to assign

an administrative law judge to conduct the final hearing.

On March 18, 2021, the undersigned entered an Order setting the final

hearing for May 10, 2021. The final h earing was held on May 10, 2021, with

all parties present. Petitioner testified on her own behalf. PetitionerÔs

Exhibits 1 and 2 were received into evidence. Respondents did not present

any witnesses. Respondents Ô Composite Exhibits 1 through 3 and Exhibit 4

were received into evidence. At the hearing, Petitioner made an ore tenus

motion for continuance, which was opposed by Respondents. The undersigned

denied the motion at the hearing.

The one - volume final hearing Transcript was filed at DOAH on June 2,

2021. The parties timely filed proposed recommended orders, which were

considered in the preparation of this Recommended Order. Unless otherwise

indicated, citations to the Florida Statutes and Florida Administrative Code

Rules are to the 2020 versions.

F INDINGS OF F ACT

1. On October 29, 2020, Petitioner filed a fair housing discrimination

complaint with FCHR, alleging that Respondents, Brennan Realty, Inc.,

Joseph P. Brennan, Kathleen Brennan, and Thomas Brennan, discriminated

against her based on a han dicap .

2. According to her housing discrimination complaint, Petitioner rents an

apartment at 937 Southwest 5th Street, Ap artment 4, Coral Gables, Florida,

33134, Ñwhich is subject to rules and regulations of Respondent[,] Brennan

Realty, Inc., owned by Respondent[,] Thomas Brennan, and Respondent

Registered Agent Joseph P. Brennan, and landlord Respondent[,] Kathleen

Brennan.Ò Petitioner alleged that Respondent Brennan Realty, Inc. , sent

notices for her to vacate the premises after she made a maintenanc e request

to property owners Kathleen and Joseph Brennan for repairs and a

reasonable modification to install grab bars inside of her shower to assist her

and prevent falls. Petitioner further alleged Ñshe provided medical

documentation to the Respondents which also stated that it is medically

necessary for [her] to have the grab bars installed as well.Ò Petitioner further

alleged Respondents Kathleen Brennan and Joseph Brennan Ñstill [have] not

installed the grab bars and [are] requesting for her to vacate the premises.Ò

As such, Ñ [Petitioner] believes that Respondents subjected her to

discriminatory terms and conditions based on her physical disability.Ò

3. In May 2019, July 2019, and August 2019, Petitioner received notices

informing her that her lease w ould expire on September 1, 2019; that the

lease would not be renewed ; and that she needed to vacate and surrender the

premises by no later than September 1, 2019.

4. On September 9, 2019, an eviction complaint was filed against

Petitioner in Miami - Dade C ounty Court. On September 12, 2019, Petitioner

was served with the eviction complaint.

5. The persuasive and credible evidence adduced at hearing demonstrates

that the alleged discriminatory housing practice occurred, at the latest, on

September 12, 2019, when Petitioner was served with the eviction complaint.

Accordingly, Petitioner had one year from September 12, 2019, in which to

file her housing discrimination complaint with FCHR. However, Petitioner

did not file her complaint with FCHR until October 29 , 2020. Therefore,

PetitionerÔs housing discrimination complaint was untimely.

6. Even if PetitionerÔs housing discrimination complaint was timely filed

with FCHR, her Petition for Relief was not timely filed.

7. At hearing, Petitioner acknowledged she re ceived FCHRÔs no cause

determination on January 13, 2021. The no cause determination expressly

provides that if Petitioner Ñdoes not agree with this determination, [she] may

request an administrative hearing by filing a Petition for Relief with the

FCHR wi thin 30 days of the date of service of this Notice.Ò However,

PetitionerÔs Petition for Relief was not filed with FCHR until February 26,

2021. Therefore, PetitionerÔs Petition for Relief was untimely.

C ONCLUSIONS OF L AW

8. DOAH has personal and subject m atter jurisdiction in this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

9. The FFHA makes it unlawful to discriminate against any person "in the

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

provi sion of services or facilities in connection therewith, because of race,

color, national origin, sex, handicap, familial status, or religion." § 760.23(2),

Fla. Stat.

10. The FFHA expressly requires that a complaint alleging a violation of

the FFHA must be filed within one year after the alleged discriminatory

housing practice occurred:

Any person who files a complaint under subsection

(1) must do so within 1 year after the alleged

discriminatory housing practice occurred. The

complaint must be in writing a nd shall state the

facts upon which the allegations of a discriminatory

housing practice are based. A complaint may be

reasonably and fairly amended at any time. A

respondent may file an answer to the complaint

against him or her and, with the leave of the

commission, which shall be granted whenever it

would be reasonable and fair to do so, may amend

his or her answer at any time. Both the complaint

and the answer must be verified.

§ 760.34(2), Fla. Stat.

11. Petitioner has the burden to demonstrate, by a preponderance of the

evidence, that she complied with the time requirements in section 760.34(2).

§ 760.34(5), Fla. Stat.; Fla. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla.

1st DCA 1981).

12. A "preponderance of the evidence" means the "greater w eight" of the

evidence, or evidence that "more likely than not" tends to prove the fact at

issue. Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

13. As detailed above, the evidence adduced at hearing demonstrates that

Petitioner did not file her dis criminatory housing complaint with FCHR until

October 29, 2020, more than one year after the alleged discriminatory

housing practice occurred. Therefore, her complaint is untimely.

14. Nevertheless, Petitioner argues she ÑfiledÒ her housing discrimination

complaint with U.S. Housing and Urban Development (ÑHUDÒ) I ntern Sarah

Malkin on September 25, 2019, which , therefore , constitutes a timely filing of

her housing discrimination complaint with FCHR. However, Petitioner failed

to present persuasive and cred ible evidence that she, in fact, filed a

discriminatory housing complaint with HUD. Moreover, no evidence was

presented at hearing establishing that HUD notified Respondents of any such

purported ÑcomplaintÒ or that HUD forwarded any such purported complai nt

to FCHR. Even if Petitioner had, in fact, filed a housing discrimination

complaint with HUD on September 25, 2019, which the evidence does not

establish, Petitioner cites no authority to support the proposition that such a

filing, standing alone, would constitute a timely filed discriminatory housing

complaint with FCHR.

15. Even if Petitioner had timely filed her housing discrimination

complaint with FCHR, she failed to timely file her Petition for Relief with

FCHR. ÑA complainant may file a Petition f or Relief from a Discriminatory

Housing Practice within 30 days of service of Notice of Determination

(No Cause) or Notice of Determination (Cause).Ò Fl a. Admin . Code

R . 60Y - 8.001(1). As detailed above, Petitioner received FCHRÔs no cause

determination on January 13, 2021, but her Petition for Relief was not filed

with FCHR until February 26, 2021.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations enter a

final o rder dismissing the Petition for Relief.

D ONE A ND E NTERED this 7 th day of June , 2021 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June , 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk Vanessa Marie Bertran, Esquire

Florida Commission on Human Relations Vanessa M. Bertran , P . A .

4075 Esplanade Way , Room 110 55 Alhambra Plaza , Suite 800

Tallahassee, Florida 32399 - 7020 Coral Gables, Florida 33134

Ap ril Denise Dukes Cheyanne Costilla, General Counsel

937 Southwest 5th Street , Apartment 4 Florida Commission on Human R elations

Miami, Florida 33130 4075 Esplanade Way , Room 110

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.