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


View Dockets  
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.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 11/19/2021
Proceedings: Agency Final Order Dismissing Petition for Relief from a Discriminatory Housing Practice filed.
PDF:
Date: 11/18/2021
Proceedings: Agency Final Order
PDF:
Date: 09/17/2021
Proceedings: Recommended Order
PDF:
Date: 09/17/2021
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/17/2021
Proceedings: Recommended Order (hearing held July 22, 2021). CASE CLOSED.
PDF:
Date: 09/10/2021
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 09/10/2021
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 08/11/2021
Proceedings: Notice of Filing Transcript.
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 Second Amended Notice of Filing Exhibit List 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: 07/19/2021
Proceedings: Notice of Appearance (Ashley Gallagher) filed.
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: 07/16/2021
Proceedings: Verified Return of Service (David Schaare) filed.
PDF:
Date: 07/16/2021
Proceedings: Respondent's Pre-Hearing Stipulation filed.
PDF:
Date: 07/15/2021
Proceedings: Petitioner Pre-Hearing Statement filed.
PDF:
Date: 07/15/2021
Proceedings: Verified Return of Service (George Miles) filed.
PDF:
Date: 07/15/2021
Proceedings: Verified Return of Service (David Schaare) filed.
PDF:
Date: 07/15/2021
Proceedings: Respondent's Response to Petitioner's First Request for Admissions filed.
PDF:
Date: 07/15/2021
Proceedings: Amended Notice of Taking Deposition (Schaare) filed.
Date: 07/15/2021
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 07/14/2021
Proceedings: Respondent's Amended Notice of Filing Exhibit List filed.
PDF:
Date: 07/14/2021
Proceedings: (Corrected) Pre-Hearing Stipulation filed.
PDF:
Date: 07/14/2021
Proceedings: Pre-Hearing Stipulation filed.
PDF:
Date: 07/14/2021
Proceedings: Respondent's Notice of Filing Exhibit List filed.
PDF:
Date: 07/13/2021
Proceedings: Petitioner's Exhibit List filed.
PDF:
Date: 07/09/2021
Proceedings: Notice of Service of Petitioner's Unverified Answers to Respondent's First Set of Interrogatories filed.
PDF:
Date: 07/07/2021
Proceedings: Notice of Appearance (Laura Coleman) 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: 06/28/2021
Proceedings: Verified Return of Service (George Miles) filed.
PDF:
Date: 06/28/2021
Proceedings: Verified Return of Service (David Schaare) filed.
PDF:
Date: 06/23/2021
Proceedings: Notice of Taking Depositions 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: 06/16/2021
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 06/16/2021
Proceedings: Petitioner's Second Request for Admissions to Respondent filed.
PDF:
Date: 06/15/2021
Proceedings: Petitioner's Request for Admissions to Respondent filed.
PDF:
Date: 06/03/2021
Proceedings: Notice of Taking Deposition (Allen) filed.
PDF:
Date: 06/02/2021
Proceedings: Respondent's First Request for Production to Petitioner filed.
PDF:
Date: 06/02/2021
Proceedings: Respondent's First Request for Admissions to Petitioner filed.
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.
PDF:
Date: 06/02/2021
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/02/2021
Proceedings: Notice of Hearing by Zoom Conference (hearing set for July 22, 2021; 9:00 a.m., Eastern Time).
PDF:
Date: 06/02/2021
Proceedings: Complainant Response to Initial Order filed.
PDF:
Date: 05/28/2021
Proceedings: Respondent's Amended Unilateral Response to Initial Order filed.
PDF:
Date: 05/26/2021
Proceedings: Respondent's Unilateral Response to Initial Order filed.
PDF:
Date: 05/19/2021
Proceedings: Initial Order.
PDF:
Date: 05/19/2021
Proceedings: Housing Discrimination Complaint filed.
PDF:
Date: 05/19/2021
Proceedings: Notice of Determination of No Cause filed.
PDF:
Date: 05/19/2021
Proceedings: Determination (No Cause) filed.
PDF:
Date: 05/19/2021
Proceedings: Petition for Relief filed.
PDF:
Date: 05/19/2021
Proceedings: Transmittal of Petition filed by the Agency.

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

Related Florida Statute(s) (5):