21-001625 Pamela Allen vs. Building And Code Administration Et Al Status: Closed Recommended Order on Friday, September 17, 2021.

Summary: Petitioner failed to prove that Volusia County's denial of her building permit for a roof overlay was discrimination based on Petitioner's race.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P AMELA A LLEN ,

Petitioner,

vs. Case No. 21 - 1625

B UILDING AND C ODE A DMINISTRATION ,

E T A L .,

Respondent .

/

R ECOMMENDED O RDER

An administrative hearing was conducted in this case on July 22 , 2021 ,

via Zoom, before James H. Peterson III, Administrative Law Judge with the

Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitio ner: Ka'Juel Washington, Esquire

The Washington Trial Group, PLLC

Suite 500

37 North Orange Avenue

Orlando, Florida 32801

For Respondent: Erin G. Jackson, Esquire

Johnson Jackson PLLC

Suite 2310

100 North Ta mpa Street

Tampa, Florida 33602

S TATEMENT OF T HE I SSUE

Whether Respondent, the County of Volusia, Florida, (the County or

Respondent) 1 illegally discriminat ed against Pamela Allen (Petitioner) by

refusing to issue a building permit for re - sh ingling PetitionerÔs roof because

of her race.

P RELIMINARY S TATEMENT

Petitioner filed a Housing Discrimination Complaint (Discrimination

Complaint) with the Florida Commission on Human Relations

(the Commission or FCHR) on January 15, 2021 , which was ass igned

FCHR Case No . 202128026. In her statement of facts set forth in paragraph 8

of the Discrimination Complaint, Petitioner alleges:

Complainant Pamela Allen identifies as a person of

African American/Black race. As such,

Complainant belongs to a class o f persons whom

the Fair Housing Act ("the Act") protects from

unlawful discrimination by virtue of race.

Complainant owns a single - family home located at

4204 Quail Nest Lane New Smyrna Beach, FL

32168; which is under the jurisdiction of city

enforcement o ffice Respondent Building and Code

Administration. Complainant identified

Respondent Kerry Leuzinger as the Director and

Chief Building official and as white.

Complainant alleged that she applied for a permit

to re - shingle her home. Complainant alleged t hat

her permit was denied, and she appealed it on

March 4, 2020. Complainant alleged that during

the appeal process, she learned that Respondent

Kerry Leuzinger attempted to purchase the subject

property while it was in Auction. Complainant

alleged she won the Auction and took ownership of

the property. Complainant alleged that when

Respondent learned a black woman won the

Auction of the property, he deliberately began to

1 As discussed during the final hearing, the proper name fo r Respondent is the County of

Volusia, Florida (the County), as opposed to the name set forth in the style of the case.

interfere and hinder Complainants [sic] Civil Fair

Housing Rights by falsely denying a nd/or delaying

her ability to re - shingle her home as allowed by the

Florida Building code. Complainant alleged that

Respondent hindered her ability to resell the

property, thereby causing financial hardship and

loss. As such, Complainant believes that

Resp ondents subjected her to discriminatory terms,

conditions, privileges, or services based on her race .

After investigating PetitionerÔs allegations, the CommissionÔs executive

director issued a document entitled Ñ D ETERMINATION (N O C AUSE ) , Ò dated

April 19, 2021 (No Cause Determination) , stating that Ñthe Commission finds

that there is not reasonable cause to believe that a discriminatory housing

practice occurred in violation of Section 760.23( 2 ), Florida Statutes.Ò An

accompanying Notice of Determination of No Cause notified Petitioner of h er

right to file a Petition for Relief for an administrative proceeding within

3 0 days . Petitioner filed a Petition for Relief with the Commission via

facsimile on May 18, 2021. T he Commission forwarded the Petition for Re lief

to DOAH on May 19, 2021 , for the assignment of an administrative law judge

to conduct a hearing.

The undersigned was assigned the case and scheduled it for an

administrative hearing to be held July 22, 2021 . T he hearing was held as

scheduled. During the hearing, Petitioner called George Miles and

Hughl ester Philip as witnesses, testified on her own behalf, and offered

14 exhibits received into evidence as PetitionerÔs Exhibits P - 1 through P - 14.

Respondent called Eric Gebo, Paul Traider , and Kerry Leuz inger as witnesses

and offered 28 exhibits received into evidence as RespondentÔs Exhibits R - 1

through R - 26, R - 30 , and R - 31.

The proceedings wer e recorded, and a transcript was ordered. The parties

were given 30 days from the filing of the transcript to s ubmit their proposed

recommended orders. The one - volume Transcript of the hearing was filed

August 11 , 2021 . Thereafter, the parties timely submitted their respective

Proposed Recommended Orders , both of which have been considered in

preparing this Recomme nded Order.

F INDINGS OF F ACT

1. Petitioner is a Black female who resides at 4204 Quail Nest Lane , New

Smyrna Beach, Florida (the Property), in Volusia County. The home was

built in 1994 before the Florida Building Code (the Code) was first

implemented . Pe titioner purchased the home through a confidential auction

in the Fall of 2019.

2. At the time of purchase, Petitioner was living in Georgia and was aware

that the Property was uninhabitable and in foreclosure. In order to purchase

the Property at auction, Petitioner took out a loan from a private investment

group . The loanÔs conditions forb a d e Petitioner from moving into the Property

until repairs to the house w ere complete and Petitioner obtained a

conventional mortgage.

3. In an effort to obtain a highe r appraisal rate, Petitioner planned to do a

shingle - over - shingle overlay of the PropertyÔs roof. Hughlester Philip, a friend

of PetitionerÔs who lived in Georgia, agreed to help Petitioner with the

shingle - over - shingle overlay.

4. In early December 2019, Mr. Philip , with the help of his brother and a

friend, began to place an overlay of shingles by placing shingle over shingle

on the Property Ôs roof without a permit or inspection .

5. Neither Hughl ester Philip , his brother, nor his friend were Florida -

l ice nsed contractor s, and n either of them had any ownership interest in the

Property.

6. A permit from the County was required prior to starting work on the

roof.

7. A s top w ork o rder (Stop Work Order) was issued by the County and

posted in the yard of the Pro perty for the re - roofing project on December 13,

2019 , due to PetitionerÔs failure to pull a permit prior to starting the shingle -

over - shingle overlay . Neither Mr. Philip nor Petitioner were on the Property

when Respondent posted the Stop Work Order. Petit ioner does not know who

placed the Stop Work Order in her yard.

8. At the final hearing, Petitioner admitted that she should have obtained

a permit prior to the start of the re - roofing project and that she was at fault

for failing to obtain a permit befor e the work began.

9. On December 13, 2019, after the Stop Work Order was issued,

P etitioner went to the County to apply for a permit . Mr. Philip helped

Petitioner complete the permit application . Prior to this permit application ,

Mr. Philip had never pers onally pulled a permit for a roof overlay in Florida

or anywhere else . In fact, Mr. Philip had never applied for any type of permit

in Florida.

10. When Petitioner arrived to submit her application for a permit to the

County , there were several women work ing in the office. T his was the first

time that Petitioner had any contact with anybody from the County.

Petitioner was not asked about her race or gender as part of the permit

application process.

11. In her permit application, Petitioner specified that she sought a

permit to re - roof her sloped shingle roof and that she did not intend to

remove the existing roof . In other words, she intended to place shingle over

shingle without removing the existing roof.

12. As part of the CountyÔs permitting process, once a permit application

is filed, a plan review is performed. If any deficiencies are noted, the County

automatically issues a request for additional information (Additional

Information Request) . County Plans Examiner, Harold Allen, was charged

with revi ewing PetitionerÔs permit application.

13. On December 19, 2019, the County issued Petitioner an Additional

Information Request . T he r equest , prepared by Mr. Allen , stated that Tom

Legler would be performing an inspection of the project, and, quoting

lang uage found in section 706.3(5) of the Code, further stated:

N ew roof coverings shall not be installed without

first removing all existing layers of the roof

coverings down to the roof deck where any of the

following conditions occur: Where the existing roo f

is to be used for attachment for a new roof system

and compliance with the securement provisions of

Section 1504.1 of the Florida Building Code,

Building cannot be met.

14. Mr. Harold Allen had n ever met Petitioner, nor had he spoken to her

on the phon e prior to sending the Additional Information Request on

December 19, 2019.

15. The Property was built prior to implementation of the Code in 1994,

and the County did not have any record of an inspection being done since

then. T he CountyÔs main concern was PetitionerÔs intent to install a shingle

roof over an existing shingle roof without a County inspector b eing able to

first verify that the underlying sheathing complied with current c ode .

16. The Code is implemented by the State of Florida, not the County . The

County has no authority to delete or change the Code.

17. After receiving the Additional Information Request, Petitioner made

several calls to the County. During these calls, Petitioner spoke to Mr. Allen

and Chief Building Inspector Tom Legler. On one of the calls, Petitioner

alleges that she heard Mr. Legler state to someone else that Ñthose people are

calling again about their roof.Ò

18. P aragraph 29 of PetitionerÔs Proposed Recommended Order suggests

that Mr. LeglerÔs reference to Ñthose peopleÒ was a racial epithet . T hat

suggestion , however, is not supported by the evidence. At the final hearing,

Petitioner testified that she did not know who Mr. Legler was speaking to

and does not know why Mr. Legler referred to her as Ñthose people.Ò The

evid ence was otherwise insufficient to show whether Mr. Legler was even

aware of PetitionerÔs race at the time the comment was made.

19. During the same time period that Petitioner was calling the County in

December 2019 , Petitioner hired George Miles, a p rofe ssional e ngineer,

because she needed an engineer to certify that the work performed on the

PropertyÔs roof complied with the Code.

20. Depending on the circumstances, the County has the authority to

accept engineer certification letters on c ode complianc e in lieu of conducting

its own inspection.

21. After inspecting the roof and noting that some areas needed repair,

Mr. Miles prepared a letter certifying that the work that had been completed

on the roof complied with the Code and that he planned to submi t his letter

to the County to consider in lieu of a County inspection. However, a s there

was a disagreement with the County as to whether the roof needed to be

removed to comply with the Code, the County indicated that it would not

accept the letter in lie u of inspection and Mr. Miles never submitted the

letter.

22. In attempting to resolve the disagreement over PetitionerÔs permit

application, Mr. Miles mainly spoke to Kerry Leuzinger, who is the Chief

Building Official and Division Director of the CountyÔ s Building and Code

Administration.

23. Early on, in December of 2019, before the County sent Petitioner any

letter regarding potential fines, Mr. Philip contacted roofing contractor David

Schaare to ask how much it would cost Petitioner to reroof her Prop erty .

Mr. Philip advised Mr. Schaare of the Stop Work Order and need for a

permit.

24. Thereafter, Mr. Schaare evaluated PetitionerÔs Property and estimated

how much it would cost to reroof it. Mr. Schaare determined that the overlay

was done incorrectly. According to Mr. Schaare, the roof work did not comply

with the Code and Mr. Schaare advised Mr. Philip that Ñ[e]verything would

have to come off to be done correctlyÈ . Ò At the final hearing, Mr. Schaare

testified that he had never seen the County approve a shingle overlay for a

roof in the same condition as PetitionerÔs.

25. Petitioner was on the phone during several calls between Mr. Miles

and Mr. Leuzinger, but Petitioner did not speak. Mr. Leuzinger does not

recall ever speaking with Petitioner on the phone and was not aware of

PetitionerÔs race at the time . Petitioner has never met Mr. Leuzinger face - to -

face. In fact, Mr. Leuzinger was not aware of PetitionerÔs race until he

received notice of PetitionerÔs Discrimination Complaint in January of 2021 --

more than a year after Respondent issued the Stop Work Order and more

than a year after Petitioner applied for a permit in December of 2019.

26. Mr. Miles, Petitioner, and Mr. Leuzinger also discussed PetitionerÔs

permit application over email. On January 10, 2020, Mr. Miles emailed

Mr. Leuzinger to advise of his interpretation of the Code and to ask if

Respondent agreed with it. After several emails back and forth, and lack of

consensus between them as to interpretation of the Code, Mr. Leuzinger

advised M r. Miles that Petitioner could appeal RespondentÔs decision to the

Volusia County Contractor Licensing & Construction Appeals Board ( the

Board) or request a binding interpretation from the Florida Department of

Business and Professional Regulation (DBPR) .

27. O n January 13, 2020, Respondent issued Petitioner a Notice of

Violation regarding PetitionerÔs failure to obtain required permits prior to

starting the work on the PropertyÔs roof. The Notice of Violation is a standard

letter that Respondent sends to homeowners to notify them of a code violation

and to notify them that Respondent could take further action if the

homeowner fails to correct the violation.

28. This was the only Notice of Violation that Petitioner received.

Respondent did not issue Petiti oner another N otice of Violation because

Respondent was aware of PetitionerÔs intent to appeal RespondentÔs denial of

a permit.

29. On January 15, 2020 , after speaking with Mo Modani, who works for

DBPR , Mr. Miles emailed Mr. Leuzinger and advised that Mr. ModaniÔs

opinion regarding the Code was consistent with the position advocated by

Mr. Miles on behalf of Petitioner . Mr. Miles provided Mr. M o daniÔs name and

phone number and asked Mr. Leuzinger to give him a call.

30. Mr. Modani is a staff member who doe s not have authority over local

jurisdictions with respect to enforcement of the Code.

31. That same day, January 15, 2020, instead of calling Mr. Modani,

Mr. Leuzinger responded with an email to Mr. Miles stating , ÑWe have made

our determination and it stands.Ò

32. At some point, Petitioner decided to abandon efforts to obtain an

overlay and instead hire d Mr. Schaare to replace the roof . Although it is

unclear from the record when the job was completed , once Mr. Schaare

undertook the project, it took him approximately two days to replace the roof

at a price of approximately $25,000.

33. According to Mr. Schaare , the County inspector for the Property

mentioned that he had made a bid on the Property when it was up for

auction. Mr. Schaare could not reme mber the name of the inspector and he

did not know if it was Kerry Leu z inger. Mr. Schaare related this information

to Mr. Philip.

34. Mr. Leuzinger was not the inspector for the Property and there is

otherwise lack of sufficient evidence that would support a finding that Ñ Kerry

Leuzinger attempted to purchase the subject property while it was in

Auction ,Ò as alleged in the Discrimination Complaint .

35. On January 30, 2020, Mr. Miles appealed the CountyÔs decision to

deny PetitionerÔs permit for an overlay to the Board.

36. The Board is composed of various professionals in the construction

industry, none of wh om are employed by Respondent. The role of the Board is

to review cases to assess the reasonableness of the CountyÔs decision .

37. PetitionerÔs appeal was held before the Board on March 4, 2020. Chief

Plans Examiner Eric Gebo presented on RespondentÔs behalf. Mr. Gebo never

personally met Petitioner, never spoke with Petitioner, and did not know

PetitionerÔs race. Petitioner did not present to the B oard , rather, Mr. Miles

presented on PetitionerÔs behalf. Mr. Leuzinger was not present.

38. The discussion regarding PetitionerÔs proposed roof - over lasted more

than 30 minutes. The crux of the issue was whether the sheathing nailing on

the roof could be ver ified as required under the applicable provisions of the

Code. According to the County, because PetitionerÔs home was built before

the CodeÔs implementation and Respondent did not have evidence of a prior

roof permit being pulled, the County could not veri fy that the underlying

sheathing was ever inspected and could not verify that the sheathing

complied with the Code without Petitioner first removing the existing layers

of shingles. The position of the County on the issue was consistent with its

decisions in other cases with similar facts.

39. During the hearing, Mr. Miles stated that, Ñ[w]hen it comes down to

the simple truth of this is that itÔs a difference of interpretation.Ò He also

advised the B oard that he Ñwanted to actually have [the State] make a

recommendation on this È and they will not do it until [they] go through this

process.Ò

40. The B oard members also discussed the need for clarification as to the

Code. For example, while one B oard member indicated that Ñthe Code seems

pretty clear,Ò anoth er member asked Mr. Gebo for clarification because he

believed that Ñ[they] cover roofs all the time without tearing them off.Ò

41. After further discussion, the Board , by unanimous vote , concluded that

Respondent correctly denied PetitionerÔs permit appl ication . Even so, the

B oard encouraged Mr. Miles to seek a binding interpretation from the State

because t he wording in the Code Ñneeds to be resolved.Ò

42. On June 8, 2020, Mr. Miles filed a petition with DBPR on behalf of

Petitioner requesting a bindi ng interpretation of s ection 706.3 of the Code. 2

Following a telephonic hearing held before the Building Officials Association

of Florida, on July 7, 2020, a binding interpretation of the Code was entered

agreeing with Mr. MilesÔ interpretation that an ove rlay was permitted . The

comment to the binding interpretation acknowledged that the wording of the

section it interpreted Ñhas created confusion . Ò

C ONCLUSIONS OF L AW

43. DOAH has jurisdiction over the parties and subject matter of this

proceeding under s ections 1 20.569 and 120.57(1) , Florida Statutes. 3

44. PetitionerÔs Discrimination Complaint allege s a violation under

chapter 760, part II, sections 760.20 - 760.37, Florida Statutes , known as the

Florida Fair Housing Act (FHA).

2 Section 706.3 of the Florida Building Code, excluding exceptions, provides:

New roof coverings shall not be installed without first

removing all existing layers of roof coverings down to the roof

deck wher e any of the following conditions occur:

1. Where the existing roof or roof covering is water soaked or

has deteriorated to the point that the existing roof or roof

covering is not a dequate as a base for additional roofing.

2. Where the existing roof covering is wood shake, slate, clay,

cement or asbestos - cement tile.

3. Where the existing roof has two or more applications of any

type of roof covering.

4. When blisters exist in any ro ofing, unless blisters are cut or

scraped open and remaining materials secured down before

applying additional roofing.

5. Where the existing roof is to be used for attachment for a

new roof system and compliance with the securement

provisions of Section 1 504.1 [relating to wind resistance

performance requirements] of the Florida Building Code,

Building cannot be met.

3 Unless otherwise indicated, all references to the Florida Statutes , laws , and codes are to the

20 19 versions applicable when the alleged d iscriminatory acts occurred.

45. The FHA is patterned aft er the federal Fair Housing Act. As such,

discriminatory acts prohibited under the federal Fair Housing Act are also

prohibited under the FHA, and federal case 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 its federal

prototype.Ò).

46. Section 760.23(2) of the FHA provides:

It is unlawful to discriminate a gainst any person in

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, disability, familial

status, or religion.

47. P etitioner has the burden of establishing facts to prove a prima facie

case of discrimination. U.S. Dep Ô t of Hous . & Urban Dev . v. Blackwell ,

908 F.2d 864, 870 (11th Cir. 1990).

48. As developed in federal cases, a prima facie case of discrimination may

be established by statistical proof of a pattern of discrimination, or on the

basis of direct evidence which, if believed, would prove the existence of

discrimination without inference or presumption. 4 Usually, however, as in

this case, direct evidence is lac king and one seeking to prove discrimination

must rely on circumstantial evidence of discriminatory intent, using the

shifting three - part Ñburden of proofÒ pattern established in McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973).

49. Under the three - pa rt burden of proof pattern developed in McDonnell

Douglas :

4 For instance, an example of direct evidence in an age discrimination case would be the

employer's memorandum stating, ÑFire [petitioner] Ï he is too old,Ò clearly and directly

evincing that the plaintiff was terminated based on his age. See Earl e y v. Champion Int'l

Corp ., 907 F.2d 1077, 1081 (11th Cir. 1990)).

First, [Petitioner] has the burden of proving a

prima facie case of discrimination by a

preponderance of the evidence. Second, if

[Petitioner] sufficiently establishes a prima facie

case, the b urden shifts to [Respondent] to

Ñarticulate some legitimate, nondiscriminatory

reasonÒ for its action. Third, if [Respondent]

satisfies this burden, [Petitioner] has the

opportunity to prove by preponderance that the

legitimate reasons asserted by [Respon dent] are in

fact mere pretext.

Blackwell , 908 F.2d at 870 ( citing Pollitt v. Bramel , 669 F. Supp. 172, 175

(S.D. Ohio 1987) ) (federal Fair Housing Act claim)( quoting McDonnell

Douglas , 411 U.S. at 802, 804, 93 S. Ct. at 1824, 1825).

50. Ñ[ C ] onclusory al legations of discrimination , without more, are not

sufficient to raise an inference of pretext or intentional discrimination . . . . Ò

Young v. Gen Ô l Food Corp. , 840 F.2d 825, 830 ( 11 th Cir. 1988) ( quoting

Grigsby v. Reynolds Metals Co. , 821 F.2d 590, 597 ( 11th Cir. 1987) ) .

Petitioner cannot rely upon suspicion or conjecture to prove that

discrimination motivated RespondentÔs actions. Id .

51. Applying the shifting of burden analysis to PetitionerÔs claim, in order

to establish the elements for a prima facie case of discrimination involving

discriminatory terms and conditions in violation of s ection 760.23(2), a

petitioner must establish that: (1) he or she belongs to a class of persons

whom the Florida Fair Housing Act protects from unlawful discrimination

b ecause of race, color, national origin, sex, disability, familial status, or

religion; (2) he or she was qualified, ready, willing, and able to receive

services or use facilities consistent with the terms, policies , and procedures of

respondent; (3) he or she requested the services or use of facilities, or

attempted to use facilities consistent with the terms and conditions, policies,

and procedures established by respondent for all persons who are qualified or

eligible for services or use of facilities; an d (4) respondent, with knowledge of

petitionerÔs protected class, willfully failed or refused to provide services to

petitioner or permit use of the facilities under the same terms and conditions

that were applicable to all persons who were qualified or el igible for services

or use of the facilities.

52. The services at issue in this case involve the issuance of a building

permit for re - shingling of PetitionerÔs roof over existing shingles.

53. Petitioner has not met her burden with respect to establish ing her

alleged discrimination claim. PetitionerÔs claim of discrimination is based on

allegations that Mr. Leuzinger targeted Petitioner because Petitioner outbid

him at auction. Those allegation s are not supported by the evidence. E ven if

they were , the case that Mr. Leuzinger did not like Petitioner because he was

outbid does not equate to discrimination based on any protected

characteristic.

54. Mr. Leuzinger did not bid on the Property as alleged. Petitioner never

met Mr. Leuzinger face - to - face. Mr. L euzinger did not know of PetitionerÔs

race until over a year after the Stop Work Order was issued. Absent

knowledge of her race, Mr. Leuzinger could not have discriminated against

her because of it.

55. In addition, Petitioner has not identified any simi larly - situated parties

who had a permit approved by Respondent for comparable work during a

period relatively near the time Respondent denied PetitionerÔs permit or at

any other time . To the contrary, Respondent has issued Additional

Information Requests a nalogous to the one issued to Petitioner when faced

with similar circumstances.

56. B oth Mr. Gebo and Mr. Leuzinger confirmed that during their years

with Respondent, Respondent never approved a shingle - over - shingle overlay

without first determining wheth er the sheathing was properly attached to

the home. Mr. Schaare testified that he has never witnessed Respondent

approve a permit for shingle - over - shingle on a roof that was in the condition

of PetitionerÔs roof.

57. In sum, Petitioner failed to meet her b urden of establishing a prima

facie case of discrimination . Even if she had, the evidence demonstrated that

Respondent issued the Stop Work Order and subsequently denied PetitionerÔs

permit application for legitimate, nondiscriminatory reasons.

58. It is undisputed that Petitioner failed to obtain a permit prior to

beginning the work. For this, Petitioner blames nobody but herself . For this

reason, the County issued the Stop Work Order . Petitioner admits that she

did not have contact with Respondent prior to issuance of the Stop Work

Order.

59. F urther, the CountyÔs denial of PetitionerÔs permit application was

also for legitimate and nondiscriminatory reasons , based on its reasonable

interpretation of s ection 706.3 of the Code. Specifically, Respondent

in terpreted the Code to prohibit Petitioner from installing a shingle - over -

shingle overlay on her roof without first removing existing layers because

PetitionerÔs home was built before the CodeÔs implementation and

Respondent did not have evidence of a prior roof permit being pulled and

attendant inspections being performed. RespondentÔs explanation as to its

interpretation of s ection 706.3 and denial of PetitionerÔs permit was

consistent over the course of the p artiesÔ numerous discussions , and

Respondent co nsistently applied this interpretation in similar circumstances.

Indeed, al though the County has abided by the StateÔs binding interpretation

since its issuance on July 7, 2020 , Mr. Leuzinger still disagrees .

60. The fact that s ection 706.3 was subject to differing interpretations

prior to Mr. MilesÔ request for a binding interpretation is evidenced by the

various discussions that took place between Mr. Miles and the County and

the discussions among the Board members during the March 4, 2020,

hearing. T he r easonableness and legitimacy of RespondentÔs interpretation of

the Code is further evidenced by the Board Ôs decision to uphold RespondentÔs

denial , but even then, acknowledging the need for a binding interpretation.

And finally, in the comment to the Bindi ng Interpretation of the Code at

issue, it was recognized that there has been ongoing confusion regarding that

section of the Code.

61. In sum, RespondentÔs denial of PetitionerÔs permit was based upon its

reasonable interpretation of the Code. It had not hing to do with PetitionerÔs

race, gender, sex, or any other protected characteristic. Petitioner , other wise ,

failed to offer sufficient evidence to support her claim of discrimination or

contradict the legitimate reasons supporting the CountyÔs actions .

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 order dismissing Petitioner's Discrimination Complaint and Petition for

Relief consistent with the terms of this Recommended Order.

D ONE A ND E NTERED this 17th day of September 2021 , in Tallahassee,

Leon County, Florida.

S

J AMES H. P ETERSON , III

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 17th day of September 2021 .

C OPIES F URNISHED :

Ka'Juel Washington, Esquire Tammy S. Barton, Agency Clerk

The Washington Trial Group, PLLC Flori da Commission on Human Relations

Suite 500 4075 Esplanade Way , Room 110

37 North Orange Avenue Tallahassee, Florida 32399 - 7020

Orlando, Florida 32801

Erin G. Jackson, Esquire Stanley Gorsica , Gen eral Counsel

Johnson Jackson PLLC Florida Commission on Human Relations

S uite 2310 4075 Esplanade Way, Room 110

100 North Tampa Street Tallahassee, Florida 32399 - 7020

Tampa, Florida 33602

Laura Mauldin Coleman, Esq uire

Kerry Leuzinger, Director County of Volusia

Volusia County Building 123 West Indiana Avenue

and Code Administration Deland, Florida 32720

123 West Indiana Avenue

Deland, Florida 32720 Ashley Tinsley Gallagher, Esquire

Johnson Jackson PLLC

Suite 2310

100 North Tampa Street

Tampa, Florida 33602

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submi t 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.