21-001625
Pamela Allen vs.
Building And Code Administration Et Al
Status: Closed
Recommended Order on Friday, September 17, 2021.
Recommended Order on Friday, September 17, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13P AMELA A LLEN ,
17Petitioner,
18vs. Case No. 21 - 1625
24B UILDING AND C ODE A DMINISTRATION ,
31E T A L .,
36Respondent .
38/
39R ECOMMENDED O RDER
43An administrative hearing was conducted in this case on July 22 , 2021 ,
55via Zoom, before James H. Peterson III, Administrative Law Judge with the
67Division of Administrative Hearings (DOAH).
72A PPEARANCES
74For Petitio ner: Ka'Juel Washington, Esquire
80The Washington Trial Group, PLLC
85Suite 500
8737 North Orange Avenue
91Orlando, Florida 32801
94For Respondent: Erin G. Jackson, Esquire
100Johnson Jackson PLLC
103Suite 2310
105100 North Ta mpa Street
110Tampa, Florida 33602
113S TATEMENT OF T HE I SSUE
120Whether Respondent, the County of Volusia, Florida, (the County or
130Respondent) 1 illegally discriminat ed against Pamela Allen (Petitioner) by
140refusing to issue a building permit for re - sh ingling PetitionerÔs roof because
154of her race.
157P RELIMINARY S TATEMENT
161Petitioner filed a Housing Discrimination Complaint (Discrimination
168Complaint) with the Florida Commission on Human Relations
176(the Commission or FCHR) on January 15, 2021 , which was ass igned
188FCHR Case No . 202128026. In her statement of facts set forth in paragraph 8
203of the Discrimination Complaint, Petitioner alleges:
209Complainant Pamela Allen identifies as a person of
217African American/Black race. As such,
222Complainant belongs to a class o f persons whom
231the Fair Housing Act ("the Act") protects from
241unlawful discrimination by virtue of race.
247Complainant owns a single - family home located at
2564204 Quail Nest Lane New Smyrna Beach, FL
26432168; which is under the jurisdiction of city
272enforcement o ffice Respondent Building and Code
279Administration. Complainant identified
282Respondent Kerry Leuzinger as the Director and
289Chief Building official and as white.
295Complainant alleged that she applied for a permit
303to re - shingle her home. Complainant alleged t hat
313her permit was denied, and she appealed it on
322March 4, 2020. Complainant alleged that during
329the appeal process, she learned that Respondent
336Kerry Leuzinger attempted to purchase the subject
343property while it was in Auction. Complainant
350alleged she won the Auction and took ownership of
359the property. Complainant alleged that when
365Respondent learned a black woman won the
372Auction of the property, he deliberately began to
3801 As discussed during the final hearing, the proper name fo r Respondent is the County of
397Volusia, Florida (the County), as opposed to the name set forth in the style of the case.
414interfere and hinder Complainants [sic] Civil Fair
421Housing Rights by falsely denying a nd/or delaying
429her ability to re - shingle her home as allowed by the
441Florida Building code. Complainant alleged that
447Respondent hindered her ability to resell the
454property, thereby causing financial hardship and
460loss. As such, Complainant believes that
466Resp ondents subjected her to discriminatory terms,
473conditions, privileges, or services based on her race .
482After investigating PetitionerÔs allegations, the CommissionÔs executive
489director issued a document entitled Ñ D ETERMINATION (N O C AUSE ) , Ò dated
504April 19, 2021 (No Cause Determination) , stating that Ñthe Commission finds
515that there is not reasonable cause to believe that a discriminatory housing
527practice occurred in violation of Section 760.23( 2 ), Florida Statutes.Ò An
539accompanying Notice of Determination of No Cause notified Petitioner of h er
551right to file a Petition for Relief for an administrative proceeding within
5633 0 days . Petitioner filed a Petition for Relief with the Commission via
577facsimile on May 18, 2021. T he Commission forwarded the Petition for Re lief
591to DOAH on May 19, 2021 , for the assignment of an administrative law judge
605to conduct a hearing.
609The undersigned was assigned the case and scheduled it for an
620administrative hearing to be held July 22, 2021 . T he hearing was held as
635scheduled. During the hearing, Petitioner called George Miles and
644Hughl ester Philip as witnesses, testified on her own behalf, and offered
65614 exhibits received into evidence as PetitionerÔs Exhibits P - 1 through P - 14.
671Respondent called Eric Gebo, Paul Traider , and Kerry Leuz inger as witnesses
683and offered 28 exhibits received into evidence as RespondentÔs Exhibits R - 1
696through R - 26, R - 30 , and R - 31.
707The proceedings wer e recorded, and a transcript was ordered. The parties
719were given 30 days from the filing of the transcript to s ubmit their proposed
734recommended orders. The one - volume Transcript of the hearing was filed
746August 11 , 2021 . Thereafter, the parties timely submitted their respective
757Proposed Recommended Orders , both of which have been considered in
767preparing this Recomme nded Order.
772F INDINGS OF F ACT
7771. Petitioner is a Black female who resides at 4204 Quail Nest Lane , New
791Smyrna Beach, Florida (the Property), in Volusia County. The home was
802built in 1994 before the Florida Building Code (the Code) was first
814implemented . Pe titioner purchased the home through a confidential auction
825in the Fall of 2019.
8302. At the time of purchase, Petitioner was living in Georgia and was aware
844that the Property was uninhabitable and in foreclosure. In order to purchase
856the Property at auction, Petitioner took out a loan from a private investment
869group . The loanÔs conditions forb a d e Petitioner from moving into the Property
884until repairs to the house w ere complete and Petitioner obtained a
896conventional mortgage.
8983. In an effort to obtain a highe r appraisal rate, Petitioner planned to do a
914shingle - over - shingle overlay of the PropertyÔs roof. Hughlester Philip, a friend
928of PetitionerÔs who lived in Georgia, agreed to help Petitioner with the
940shingle - over - shingle overlay.
9464. In early December 2019, Mr. Philip , with the help of his brother and a
961friend, began to place an overlay of shingles by placing shingle over shingle
974on the Property Ôs roof without a permit or inspection .
9855. Neither Hughl ester Philip , his brother, nor his friend were Florida -
998l ice nsed contractor s, and n either of them had any ownership interest in the
1014Property.
10156. A permit from the County was required prior to starting work on the
1029roof.
10307. A s top w ork o rder (Stop Work Order) was issued by the County and
1047posted in the yard of the Pro perty for the re - roofing project on December 13,
10642019 , due to PetitionerÔs failure to pull a permit prior to starting the shingle -
1079over - shingle overlay . Neither Mr. Philip nor Petitioner were on the Property
1093when Respondent posted the Stop Work Order. Petit ioner does not know who
1106placed the Stop Work Order in her yard.
11148. At the final hearing, Petitioner admitted that she should have obtained
1126a permit prior to the start of the re - roofing project and that she was at fault
1144for failing to obtain a permit befor e the work began.
11559. On December 13, 2019, after the Stop Work Order was issued,
1167P etitioner went to the County to apply for a permit . Mr. Philip helped
1182Petitioner complete the permit application . Prior to this permit application ,
1193Mr. Philip had never pers onally pulled a permit for a roof overlay in Florida
1208or anywhere else . In fact, Mr. Philip had never applied for any type of permit
1224in Florida.
122610. When Petitioner arrived to submit her application for a permit to the
1239County , there were several women work ing in the office. T his was the first
1254time that Petitioner had any contact with anybody from the County.
1265Petitioner was not asked about her race or gender as part of the permit
1279application process.
128111. In her permit application, Petitioner specified that she sought a
1292permit to re - roof her sloped shingle roof and that she did not intend to
1308remove the existing roof . In other words, she intended to place shingle over
1322shingle without removing the existing roof.
132812. As part of the CountyÔs permitting process, once a permit application
1340is filed, a plan review is performed. If any deficiencies are noted, the County
1354automatically issues a request for additional information (Additional
1362Information Request) . County Plans Examiner, Harold Allen, was charged
1372with revi ewing PetitionerÔs permit application.
137813. On December 19, 2019, the County issued Petitioner an Additional
1389Information Request . T he r equest , prepared by Mr. Allen , stated that Tom
1403Legler would be performing an inspection of the project, and, quoting
1414lang uage found in section 706.3(5) of the Code, further stated:
1425N ew roof coverings shall not be installed without
1434first removing all existing layers of the roof
1442coverings down to the roof deck where any of the
1452following conditions occur: Where the existing roo f
1460is to be used for attachment for a new roof system
1471and compliance with the securement provisions of
1478Section 1504.1 of the Florida Building Code,
1485Building cannot be met.
148914. Mr. Harold Allen had n ever met Petitioner, nor had he spoken to her
1504on the phon e prior to sending the Additional Information Request on
1516December 19, 2019.
151915. The Property was built prior to implementation of the Code in 1994,
1532and the County did not have any record of an inspection being done since
1546then. T he CountyÔs main concern was PetitionerÔs intent to install a shingle
1559roof over an existing shingle roof without a County inspector b eing able to
1573first verify that the underlying sheathing complied with current c ode .
158516. The Code is implemented by the State of Florida, not the County . The
1600County has no authority to delete or change the Code.
161017. After receiving the Additional Information Request, Petitioner made
1619several calls to the County. During these calls, Petitioner spoke to Mr. Allen
1632and Chief Building Inspector Tom Legler. On one of the calls, Petitioner
1644alleges that she heard Mr. Legler state to someone else that Ñthose people are
1658calling again about their roof.Ò
166318. P aragraph 29 of PetitionerÔs Proposed Recommended Order suggests
1673that Mr. LeglerÔs reference to Ñthose peopleÒ was a racial epithet . T hat
1687suggestion , however, is not supported by the evidence. At the final hearing,
1699Petitioner testified that she did not know who Mr. Legler was speaking to
1712and does not know why Mr. Legler referred to her as Ñthose people.Ò The
1726evid ence was otherwise insufficient to show whether Mr. Legler was even
1738aware of PetitionerÔs race at the time the comment was made.
174919. During the same time period that Petitioner was calling the County in
1762December 2019 , Petitioner hired George Miles, a p rofe ssional e ngineer,
1774because she needed an engineer to certify that the work performed on the
1787PropertyÔs roof complied with the Code.
179320. Depending on the circumstances, the County has the authority to
1804accept engineer certification letters on c ode complianc e in lieu of conducting
1817its own inspection.
182021. After inspecting the roof and noting that some areas needed repair,
1832Mr. Miles prepared a letter certifying that the work that had been completed
1845on the roof complied with the Code and that he planned to submi t his letter
1861to the County to consider in lieu of a County inspection. However, a s there
1876was a disagreement with the County as to whether the roof needed to be
1890removed to comply with the Code, the County indicated that it would not
1903accept the letter in lie u of inspection and Mr. Miles never submitted the
1917letter.
191822. In attempting to resolve the disagreement over PetitionerÔs permit
1928application, Mr. Miles mainly spoke to Kerry Leuzinger, who is the Chief
1940Building Official and Division Director of the CountyÔ s Building and Code
1952Administration.
195323. Early on, in December of 2019, before the County sent Petitioner any
1966letter regarding potential fines, Mr. Philip contacted roofing contractor David
1976Schaare to ask how much it would cost Petitioner to reroof her Prop erty .
1991Mr. Philip advised Mr. Schaare of the Stop Work Order and need for a
2005permit.
200624. Thereafter, Mr. Schaare evaluated PetitionerÔs Property and estimated
2015how much it would cost to reroof it. Mr. Schaare determined that the overlay
2029was done incorrectly. According to Mr. Schaare, the roof work did not comply
2042with the Code and Mr. Schaare advised Mr. Philip that Ñ[e]verything would
2054have to come off to be done correctlyÈ . Ò At the final hearing, Mr. Schaare
2070testified that he had never seen the County approve a shingle overlay for a
2084roof in the same condition as PetitionerÔs.
209125. Petitioner was on the phone during several calls between Mr. Miles
2103and Mr. Leuzinger, but Petitioner did not speak. Mr. Leuzinger does not
2115recall ever speaking with Petitioner on the phone and was not aware of
2128PetitionerÔs race at the time . Petitioner has never met Mr. Leuzinger face - to -
2144face. In fact, Mr. Leuzinger was not aware of PetitionerÔs race until he
2157received notice of PetitionerÔs Discrimination Complaint in January of 2021 --
2168more than a year after Respondent issued the Stop Work Order and more
2181than a year after Petitioner applied for a permit in December of 2019.
219426. Mr. Miles, Petitioner, and Mr. Leuzinger also discussed PetitionerÔs
2204permit application over email. On January 10, 2020, Mr. Miles emailed
2215Mr. Leuzinger to advise of his interpretation of the Code and to ask if
2229Respondent agreed with it. After several emails back and forth, and lack of
2242consensus between them as to interpretation of the Code, Mr. Leuzinger
2253advised M r. Miles that Petitioner could appeal RespondentÔs decision to the
2265Volusia County Contractor Licensing & Construction Appeals Board ( the
2275Board) or request a binding interpretation from the Florida Department of
2286Business and Professional Regulation (DBPR) .
229227. O n January 13, 2020, Respondent issued Petitioner a Notice of
2304Violation regarding PetitionerÔs failure to obtain required permits prior to
2314starting the work on the PropertyÔs roof. The Notice of Violation is a standard
2328letter that Respondent sends to homeowners to notify them of a code violation
2341and to notify them that Respondent could take further action if the
2353homeowner fails to correct the violation.
235928. This was the only Notice of Violation that Petitioner received.
2370Respondent did not issue Petiti oner another N otice of Violation because
2382Respondent was aware of PetitionerÔs intent to appeal RespondentÔs denial of
2393a permit.
239529. On January 15, 2020 , after speaking with Mo Modani, who works for
2408DBPR , Mr. Miles emailed Mr. Leuzinger and advised that Mr. ModaniÔs
2419opinion regarding the Code was consistent with the position advocated by
2430Mr. Miles on behalf of Petitioner . Mr. Miles provided Mr. M o daniÔs name and
2446phone number and asked Mr. Leuzinger to give him a call.
245730. Mr. Modani is a staff member who doe s not have authority over local
2472jurisdictions with respect to enforcement of the Code.
248031. That same day, January 15, 2020, instead of calling Mr. Modani,
2492Mr. Leuzinger responded with an email to Mr. Miles stating , ÑWe have made
2505our determination and it stands.Ò
251032. At some point, Petitioner decided to abandon efforts to obtain an
2522overlay and instead hire d Mr. Schaare to replace the roof . Although it is
2537unclear from the record when the job was completed , once Mr. Schaare
2549undertook the project, it took him approximately two days to replace the roof
2562at a price of approximately $25,000.
256933. According to Mr. Schaare , the County inspector for the Property
2580mentioned that he had made a bid on the Property when it was up for
2595auction. Mr. Schaare could not reme mber the name of the inspector and he
2609did not know if it was Kerry Leu z inger. Mr. Schaare related this information
2624to Mr. Philip.
262734. Mr. Leuzinger was not the inspector for the Property and there is
2640otherwise lack of sufficient evidence that would support a finding that Ñ Kerry
2653Leuzinger attempted to purchase the subject property while it was in
2664Auction ,Ò as alleged in the Discrimination Complaint .
267335. On January 30, 2020, Mr. Miles appealed the CountyÔs decision to
2685deny PetitionerÔs permit for an overlay to the Board.
269436. The Board is composed of various professionals in the construction
2705industry, none of wh om are employed by Respondent. The role of the Board is
2720to review cases to assess the reasonableness of the CountyÔs decision .
273237. PetitionerÔs appeal was held before the Board on March 4, 2020. Chief
2745Plans Examiner Eric Gebo presented on RespondentÔs behalf. Mr. Gebo never
2756personally met Petitioner, never spoke with Petitioner, and did not know
2767PetitionerÔs race. Petitioner did not present to the B oard , rather, Mr. Miles
2780presented on PetitionerÔs behalf. Mr. Leuzinger was not present.
278938. The discussion regarding PetitionerÔs proposed roof - over lasted more
2800than 30 minutes. The crux of the issue was whether the sheathing nailing on
2814the roof could be ver ified as required under the applicable provisions of the
2828Code. According to the County, because PetitionerÔs home was built before
2839the CodeÔs implementation and Respondent did not have evidence of a prior
2851roof permit being pulled, the County could not veri fy that the underlying
2864sheathing was ever inspected and could not verify that the sheathing
2875complied with the Code without Petitioner first removing the existing layers
2886of shingles. The position of the County on the issue was consistent with its
2900decisions in other cases with similar facts.
290739. During the hearing, Mr. Miles stated that, Ñ[w]hen it comes down to
2920the simple truth of this is that itÔs a difference of interpretation.Ò He also
2934advised the B oard that he Ñwanted to actually have [the State] make a
2948recommendation on this È and they will not do it until [they] go through this
2963process.Ò
296440. The B oard members also discussed the need for clarification as to the
2978Code. For example, while one B oard member indicated that Ñthe Code seems
2991pretty clear,Ò anoth er member asked Mr. Gebo for clarification because he
3004believed that Ñ[they] cover roofs all the time without tearing them off.Ò
301641. After further discussion, the Board , by unanimous vote , concluded that
3027Respondent correctly denied PetitionerÔs permit appl ication . Even so, the
3038B oard encouraged Mr. Miles to seek a binding interpretation from the State
3051because t he wording in the Code Ñneeds to be resolved.Ò
306242. On June 8, 2020, Mr. Miles filed a petition with DBPR on behalf of
3077Petitioner requesting a bindi ng interpretation of s ection 706.3 of the Code. 2
3091Following a telephonic hearing held before the Building Officials Association
3101of Florida, on July 7, 2020, a binding interpretation of the Code was entered
3115agreeing with Mr. MilesÔ interpretation that an ove rlay was permitted . The
3128comment to the binding interpretation acknowledged that the wording of the
3139section it interpreted Ñhas created confusion . Ò
3147C ONCLUSIONS OF L AW
315243. DOAH has jurisdiction over the parties and subject matter of this
3164proceeding under s ections 1 20.569 and 120.57(1) , Florida Statutes. 3
317544. PetitionerÔs Discrimination Complaint allege s a violation under
3184chapter 760, part II, sections 760.20 - 760.37, Florida Statutes , known as the
3197Florida Fair Housing Act (FHA).
32022 Section 706.3 of the Florida Building Code, excluding exceptions, provides:
3213New roof coverings shall not be installed without first
3222removing all existing layers of roof coverings down to the roof
3233deck wher e any of the following conditions occur:
32421. Where the existing roof or roof covering is water soaked or
3254has deteriorated to the point that the existing roof or roof
3265covering is not a dequate as a base for additional roofing.
32762. Where the existing roof covering is wood shake, slate, clay,
3287cement or asbestos - cement tile.
32933. Where the existing roof has two or more applications of any
3305type of roof covering.
33094. When blisters exist in any ro ofing, unless blisters are cut or
3322scraped open and remaining materials secured down before
3330applying additional roofing.
33335. Where the existing roof is to be used for attachment for a
3346new roof system and compliance with the securement
3354provisions of Section 1 504.1 [relating to wind resistance
3363performance requirements] of the Florida Building Code,
3370Building cannot be met.
33743 Unless otherwise indicated, all references to the Florida Statutes , laws , and codes are to the
339020 19 versions applicable when the alleged d iscriminatory acts occurred.
340145. The FHA is patterned aft er the federal Fair Housing Act. As such,
3415discriminatory acts prohibited under the federal Fair Housing Act are also
3426prohibited under the FHA, and federal case law interpreting the federal Fair
3438Housing Act is applicable to proceedings brought under the FHA . See Brand
3451v. Fla. Power Corp ., 633 So. 2d 504, 509 (Fla. 1st DCA 1994)(noting that Ñthe
3467Florida statute will take on the same constructions as placed on its federal
3480prototype.Ò).
348146. Section 760.23(2) of the FHA provides:
3488It is unlawful to discriminate a gainst any person in
3498the terms, conditions, or privileges of sale or rental
3507of a dwelling, or in the provision of services or
3517facilities in connection therewith, because of race,
3524color, national origin, sex, disability, familial
3530status, or religion.
353347. P etitioner has the burden of establishing facts to prove a prima facie
3547case of discrimination. U.S. Dep Ô t of Hous . & Urban Dev . v. Blackwell ,
3563908 F.2d 864, 870 (11th Cir. 1990).
357048. As developed in federal cases, a prima facie case of discrimination may
3583be established by statistical proof of a pattern of discrimination, or on the
3596basis of direct evidence which, if believed, would prove the existence of
3608discrimination without inference or presumption. 4 Usually, however, as in
3618this case, direct evidence is lac king and one seeking to prove discrimination
3631must rely on circumstantial evidence of discriminatory intent, using the
3641shifting three - part Ñburden of proofÒ pattern established in McDonnell
3652Douglas Corp. v. Green , 411 U.S. 792 (1973).
366049. Under the three - pa rt burden of proof pattern developed in McDonnell
3674Douglas :
36764 For instance, an example of direct evidence in an age discrimination case would be the
3692employer's memorandum stating, ÑFire [petitioner] Ï he is too old,Ò clearly and directly
3706evincing that the plaintiff was terminated based on his age. See Earl e y v. Champion Int'l
3723Corp ., 907 F.2d 1077, 1081 (11th Cir. 1990)).
3732First, [Petitioner] has the burden of proving a
3740prima facie case of discrimination by a
3747preponderance of the evidence. Second, if
3753[Petitioner] sufficiently establishes a prima facie
3759case, the b urden shifts to [Respondent] to
3767Ñarticulate some legitimate, nondiscriminatory
3771reasonÒ for its action. Third, if [Respondent]
3778satisfies this burden, [Petitioner] has the
3784opportunity to prove by preponderance that the
3791legitimate reasons asserted by [Respon dent] are in
3799fact mere pretext.
3802Blackwell , 908 F.2d at 870 ( citing Pollitt v. Bramel , 669 F. Supp. 172, 175
3817(S.D. Ohio 1987) ) (federal Fair Housing Act claim)( quoting McDonnell
3828Douglas , 411 U.S. at 802, 804, 93 S. Ct. at 1824, 1825).
384050. Ñ[ C ] onclusory al legations of discrimination , without more, are not
3853sufficient to raise an inference of pretext or intentional discrimination . . . . Ò
3868Young v. Gen Ô l Food Corp. , 840 F.2d 825, 830 ( 11 th Cir. 1988) ( quoting
3886Grigsby v. Reynolds Metals Co. , 821 F.2d 590, 597 ( 11th Cir. 1987) ) .
3901Petitioner cannot rely upon suspicion or conjecture to prove that
3911discrimination motivated RespondentÔs actions. Id .
391751. Applying the shifting of burden analysis to PetitionerÔs claim, in order
3929to establish the elements for a prima facie case of discrimination involving
3941discriminatory terms and conditions in violation of s ection 760.23(2), a
3952petitioner must establish that: (1) he or she belongs to a class of persons
3966whom the Florida Fair Housing Act protects from unlawful discrimination
3976b ecause of race, color, national origin, sex, disability, familial status, or
3988religion; (2) he or she was qualified, ready, willing, and able to receive
4001services or use facilities consistent with the terms, policies , and procedures of
4013respondent; (3) he or she requested the services or use of facilities, or
4026attempted to use facilities consistent with the terms and conditions, policies,
4037and procedures established by respondent for all persons who are qualified or
4049eligible for services or use of facilities; an d (4) respondent, with knowledge of
4063petitionerÔs protected class, willfully failed or refused to provide services to
4074petitioner or permit use of the facilities under the same terms and conditions
4087that were applicable to all persons who were qualified or el igible for services
4101or use of the facilities.
410652. The services at issue in this case involve the issuance of a building
4120permit for re - shingling of PetitionerÔs roof over existing shingles.
413153. Petitioner has not met her burden with respect to establish ing her
4144alleged discrimination claim. PetitionerÔs claim of discrimination is based on
4154allegations that Mr. Leuzinger targeted Petitioner because Petitioner outbid
4163him at auction. Those allegation s are not supported by the evidence. E ven if
4178they were , the case that Mr. Leuzinger did not like Petitioner because he was
4192outbid does not equate to discrimination based on any protected
4202characteristic.
420354. Mr. Leuzinger did not bid on the Property as alleged. Petitioner never
4216met Mr. Leuzinger face - to - face. Mr. L euzinger did not know of PetitionerÔs
4232race until over a year after the Stop Work Order was issued. Absent
4245knowledge of her race, Mr. Leuzinger could not have discriminated against
4256her because of it.
426055. In addition, Petitioner has not identified any simi larly - situated parties
4273who had a permit approved by Respondent for comparable work during a
4285period relatively near the time Respondent denied PetitionerÔs permit or at
4296any other time . To the contrary, Respondent has issued Additional
4307Information Requests a nalogous to the one issued to Petitioner when faced
4319with similar circumstances.
432256. B oth Mr. Gebo and Mr. Leuzinger confirmed that during their years
4335with Respondent, Respondent never approved a shingle - over - shingle overlay
4347without first determining wheth er the sheathing was properly attached to
4358the home. Mr. Schaare testified that he has never witnessed Respondent
4369approve a permit for shingle - over - shingle on a roof that was in the condition
4386of PetitionerÔs roof.
438957. In sum, Petitioner failed to meet her b urden of establishing a prima
4403facie case of discrimination . Even if she had, the evidence demonstrated that
4416Respondent issued the Stop Work Order and subsequently denied PetitionerÔs
4426permit application for legitimate, nondiscriminatory reasons.
443258. It is undisputed that Petitioner failed to obtain a permit prior to
4445beginning the work. For this, Petitioner blames nobody but herself . For this
4458reason, the County issued the Stop Work Order . Petitioner admits that she
4471did not have contact with Respondent prior to issuance of the Stop Work
4484Order.
448559. F urther, the CountyÔs denial of PetitionerÔs permit application was
4496also for legitimate and nondiscriminatory reasons , based on its reasonable
4506interpretation of s ection 706.3 of the Code. Specifically, Respondent
4516in terpreted the Code to prohibit Petitioner from installing a shingle - over -
4530shingle overlay on her roof without first removing existing layers because
4541PetitionerÔs home was built before the CodeÔs implementation and
4550Respondent did not have evidence of a prior roof permit being pulled and
4563attendant inspections being performed. RespondentÔs explanation as to its
4572interpretation of s ection 706.3 and denial of PetitionerÔs permit was
4583consistent over the course of the p artiesÔ numerous discussions , and
4594Respondent co nsistently applied this interpretation in similar circumstances.
4603Indeed, al though the County has abided by the StateÔs binding interpretation
4615since its issuance on July 7, 2020 , Mr. Leuzinger still disagrees .
462760. The fact that s ection 706.3 was subject to differing interpretations
4639prior to Mr. MilesÔ request for a binding interpretation is evidenced by the
4652various discussions that took place between Mr. Miles and the County and
4664the discussions among the Board members during the March 4, 2020,
4675hearing. T he r easonableness and legitimacy of RespondentÔs interpretation of
4686the Code is further evidenced by the Board Ôs decision to uphold RespondentÔs
4699denial , but even then, acknowledging the need for a binding interpretation.
4710And finally, in the comment to the Bindi ng Interpretation of the Code at
4724issue, it was recognized that there has been ongoing confusion regarding that
4736section of the Code.
474061. In sum, RespondentÔs denial of PetitionerÔs permit was based upon its
4752reasonable interpretation of the Code. It had not hing to do with PetitionerÔs
4765race, gender, sex, or any other protected characteristic. Petitioner , other wise ,
4776failed to offer sufficient evidence to support her claim of discrimination or
4788contradict the legitimate reasons supporting the CountyÔs actions .
4797R ECOMMENDATION
4799Based on the foregoing Findings of Fact and Conclusions of Law, it is
4812R ECOMMENDED that the Florida Commission on Human Relations enter a
4823final order dismissing Petitioner's Discrimination Complaint and Petition for
4832Relief consistent with the terms of this Recommended Order.
4841D ONE A ND E NTERED this 17th day of September 2021 , in Tallahassee,
4855Leon County, Florida.
4858S
4859J AMES H. P ETERSON , III
4865Administrative Law Judge
48681230 Apalachee Parkway
4871Tallahassee, Florida 32399 - 3060
4876(850) 488 - 9675
4880www.doah.sta te.fl.us
4882Filed with the Clerk of the
4888Division of Administrative Hearings
4892this 17th day of September 2021 .
4899C OPIES F URNISHED :
4904Ka'Juel Washington, Esquire Tammy S. Barton, Agency Clerk
4912The Washington Trial Group, PLLC Flori da Commission on Human Relations
4923Suite 500 4075 Esplanade Way , Room 110
493037 North Orange Avenue Tallahassee, Florida 32399 - 7020
4939Orlando, Florida 32801
4942Erin G. Jackson, Esquire Stanley Gorsica , Gen eral Counsel
4951Johnson Jackson PLLC Florida Commission on Human Relations
4959S uite 2310 4075 Esplanade Way, Room 110
4967100 North Tampa Street Tallahassee, Florida 32399 - 7020
4976Tampa, Florida 33602
4979Laura Mauldin Coleman, Esq uire
4984Kerry Leuzinger, Director County of Volusia
4990Volusia County Building 123 West Indiana Avenue
4997and Code Administration Deland, Florida 32720
5003123 West Indiana Avenue
5007Deland, Florida 32720 Ashley Tinsley Gallagher, Esquire
5014Johnson Jackson PLLC
5017Suite 2310
5019100 North Tampa Street
5023Tampa, Florida 33602
5026N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
5037All parties have the right to submi t written exceptions within 15 days from
5051the date of this Recommended Order. Any exceptions to this Recommended
5062Order should be filed with the agency that will issue the Final Order in this
5077case.
- Date
- Proceedings
- PDF:
- Date: 11/19/2021
- Proceedings: Agency Final Order Dismissing Petition for Relief from a Discriminatory Housing Practice filed.
- PDF:
- Date: 09/17/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 08/11/2021
- Proceedings: Transcript (not available for viewing) filed.
- Date: 07/22/2021
- Proceedings: CASE STATUS: Hearing Held.
- Date: 07/22/2021
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 07/21/2021
- Proceedings: Letter to Judge informing of Respondent's Intention to Order Transcript filed.
- PDF:
- Date: 07/21/2021
- Proceedings: Respondent's Notice of Filing Deposition Transcript of George Miles filed.
- PDF:
- Date: 07/21/2021
- Proceedings: Respondent's Notice of Filing Deposition Transcript of David Schaare filed.
- PDF:
- Date: 07/21/2021
- Proceedings: Respondents Notice of Filing Deposition Transcript of Pamela Allen filed.
- PDF:
- Date: 07/20/2021
- Proceedings: Respondent's Response to Petitioner's First Request for Production filed.
- Date: 07/20/2021
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 07/19/2021
- Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 07/16/2021
- Proceedings: Respondent's Notice of Serving Verified Responses to Petitioner's First Set of Interrogatories filed.
- PDF:
- Date: 07/16/2021
- Proceedings: Respondent's Response to Petitioner's Second Request for Admissions filed.
- PDF:
- Date: 07/15/2021
- Proceedings: Respondent's Response to Petitioner's First Request for Admissions filed.
- Date: 07/15/2021
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 07/09/2021
- Proceedings: Notice of Service of Petitioner's Unverified Answers to Respondent's First Set of Interrogatories filed.
- PDF:
- Date: 07/06/2021
- Proceedings: Petitioner's Responses to First Request for Production to Petitioner filed.
- PDF:
- Date: 07/06/2021
- Proceedings: Petitioner's Responses to Respondent's Request for Admissions filed.
- PDF:
- Date: 06/18/2021
- Proceedings: Petitioner's First Request for Production to Respondent, Building and Code Administration ET AL filed.
- PDF:
- Date: 06/17/2021
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 06/02/2021
- Proceedings: Respondents Notice of Service of First Interrogatories to Petitioner filed.
- PDF:
- Date: 06/02/2021
- Proceedings: Certified Mail Receipt stamped this date by the U.S. Postal Service.
Case Information
- Judge:
- JAMES H. PETERSON, III
- Date Filed:
- 05/19/2021
- Date Assignment:
- 05/19/2021
- Last Docket Entry:
- 11/19/2021
- Location:
- New Smyrna Beach, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Tammy S Barton, Agency Clerk
Room 110
4075 Esplanade Way
Tallahassee, FL 323997020
(850) 907-6808 -
Erin G. Jackson, Esquire
Suite 2310
100 North Tampa Street
Tampa, FL 33602
(813) 580-8400 -
Ka'Juel Washington, Esquire
Suite 500
37 North Orange Avenue
Orlando, FL 32801
(407) 734-0402 -
Laura Mauldin Coleman, Esquire
123 West Indiana Avenue
Deland, FL 32720
(386) 736-5950 -
Ashley Tinsley Gallagher, Esquire
Suite 2310
100 North Tampa Street
Tampa, FL 33602
(813) 580-8400 -
Erin G Jackson, Esquire
100 North Tampa Street
Suite 2310
Tampa, FL 33602
(813) 580-8400 -
Kerry Leuzinger, Director
123 West Indiana Avenue
Deland, FL 32720