IN THE SUPREME COURT OF FLORIDA. CASE NO. SC LTNOS: 5D FCllR 2011H0278 DOAlH2-0537

Transcription

1 E]cctronically Filed 05/09/2013 0]:l?:37 PM ET RECEIVED.5/9/2013 l3:l8:32. Thomas D. Hall. Clerk. Supreme Court IN THE SUPREME COURT OF FLORIDA ANGELA TAGLIAF ER R1 and BETSY STEPlIENS. Petitioner, CASE NO. SC LTNOS: 5D FCllR 2011H0278 DOAlH CAMBRIDGE MANAGEMENT SERVICES, INC., WlNTER PARK IIOUSlNG AUTIlORITY. CHERYLNORTON and ROSALlEMCMASTERS. Respondents. CHERYL NORTON AND ROSAL1E MCMASTERS' RESPONSE TO PETTHONERS' BRI El? ON JURISDICTION On review from the Flfïh District Court ofappeal offlorida COI SCOTT & KISSANE, P.A. Attorneysfòr Respondents Norton & McMasters 9150 S. Dadeland Blvd., Suite 1400 Miami, Florida Telephone: (305) Facsimile: (305) CO[.I', SCOTT & KISSANF., P.A.

2 SC TABLEOFCONTENTS Page TABLE OF AUTHORITIES...ii INTRODUCTION... 1 STATEMENT OF FACTS AND PROCEDURAL BACKGROUND... 1 SUMMARYOF ARGUMENT...6 ARGUMENT...7 I. THE PETITIONERS FAIL TO SET FORTH ANY LEGALLY ACCEPTIBLE BASIS IN WHICH TO INVOKE THIS COURT'S JURISDICTION AND REVIEW THEIR II. CLAIM...7 EVEN IF THIS COURT WERE TO FIND JURISDICTION EXISTED OVER THE PETITIONERS' CLAIMS, THAT JURISDICTION SHOULD NOT BE EXERCISED CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF AUTHORITIES SC Page Cases A listate Ins. Co. v. Langston, 635 So. 2d 91 (Fla. 1995)... 8 Dodi Publishing Co. v. Editorial Amer.,.S.A., 385 So. 2d 1369 (Fla. 1980)... 9 Gandy v. State, 846 So. 2d 1141 (Fla. 2003)... 9 Osorio v. Bd. ofprofessional Surveyors and Mappers, 898 So.2d at 188 (Fla. 5th DCA 2005) Piper Aircraft, Corp. v. Schwendemann, 564 So.2d 546 (Fla. 3d DCA 1990) Tagliaferri v. Cambridge Mmgt. Servs. et al., 107 So. 3d 1184 (Fla. 5th DCA 2013)... 5 Tagliaferri v. Winter Park Housing Authority, etc. et al., 486 Fed. Appx. 771 (11th Cir. 2012)... 3 Thornhill v. Admiral Farragut Condo. Assoc., 2000 WL (Fla. Div. Admin. Hrgs. Nov. 7, 2000) Withlacoochee River Elec. Co-op., Inc. v. Tampa Elec. Co., 158 So. 2d 136 (Fla. 1963) Statutes Section (1), Fla. Stat Section (1), Fla. Stat Section (2), Fla. Stat Section (4), Florida Statutes...5, 10, 11, 12 Section , Fla. Stat... 10, 12 Rules Florida Rule of Appellate Procedure , 8 Florida Rule of Civil Procedure 9.200(a)(1)... 6 Rule 9.210(a), Fla. R. App. P

4 SC INTRODUCTION This Response is filed on behalf of the Respondents CHERYL NORTON and ROSALIE MCMASTERS (collectively, the "Respondents"), who are responding to the Petitioners' ANGELA TAGLIAFERRI and BETSY STEPHENS (collectively, the "Petitioners"), Initial Brief on Jurisdiction seeking jurisdiction of this Court from the Fifth District Court of Appeal's mandate. The Fifth District Court of Appeal affirmed the decision of the Florida Commission on Human Relations (the "FCHR"), which dismissed their petition with prejudice. The Petitioners have provided no basis for their argument that this Court may take jurisdiction over this Petition. In fact, this Court does not have jurisdiction to review the per curiam citation opinion of the Fifth District Court of Appeal. Thus, this Court does not have jurisdiction over the Petitioners' claims and the Petition should be dismissed. Citation to the Petitioners' Initial Brief on Jurisdiction will be designated "IB [page number]." STATEMENT OF FACTS AND PROCEDURAL BACKGROUND On or about March 28, 2011, the Petitioners filed an Amended Housing Discrimination Complaint (the "Complaint") with the Florida Commission on Human Relations ("FCHR"). The Complaint alleged that the Petitioners were sexually discriminated against, in violation of the Fair Housing Act, after the -1-

5 Petitioners ended a guid pro quo sexual relationship with the maintenance man. The Complaint alleged that the latest date of discrimination occurred on or about January 31, 2010, which is the date that the Petitioners residency in the apartment complex ended. On or about June 10, 2011, the FCHR submitted its "Notice of Determination (No Cause)" (the "No Cause Determination"). The No Cause Determination concluded that the FCHR did not have jurisdiction over the Petitioners' claim. The Petitioners then appealed the FCHR's decision, seeking a formal administrative proceeding to be conducted by the Department of Administrative Hearings ("DOAH"). Notwithstanding, on or about August 8, 2011, the FCHR rescinded its No Cause Determination, and reinstituted its investigation, mooting the first appeal. On January 11, 2012, the FCHR issued a second Notice of Determination of No Cause. In this Notice of Determination of No Cause, the FCHR found that there was no reasonable cause to believe that a discriminatory housing practice occurred. As such, the FCHR dismissed the Complaint. The Notice of Determination of No Cause further indicated that the Petitioners may file a civil action in an appropriate federal district or state court o_r request that a formal administrative proceeding be conducted. -2-

6 On February 10, 2012, the Petitioners filed a Petition with the FCHR seeking an administrative hearing of this matter to be conducted by DOAH (the "Petition"). The Petition alleged that the Petitioners were forced to move out of their apartment because they "refused to continue to perform sex acts on the maintenance [sic] man." The Petition further acknowledged the existence of an action that was pending in federal court, case number 6:11cv CEH-DAB, in the Northern District of Florida.1 The Petitioners argued in the DOAH Petition that the FCHR failed to conduct a timely investigation of the allegations, and that the FCHR erroneously determined that it was bound by the doctrine of res judicata due to the decision of the Federal District Court for the Northern District of Florida. The Petitioners further argued in the DOAH Petition that the FCHR investigator did not interview the co-complainant, Betsy Stephens. The Petitioners then filed a Response to DOAH's Initial Order (the "Initial Order Response"), which provided the summary of the procedures to be followed during the DOAH investigation. The Initial Order Response explained that 1 The federal court action was dismissed and the Petitioners appealed to the Eleventh Circuit Court of Appeals, case number DD. The Eleventh Circuit Court of Appeals similarly dismissed the appeal. See Tagliaferri v. Winter Park Housing Authority, etc. et al., 486 Fed. Appx. 771 (11th Cir. 2012). T11e Petitioners then sought relief in the United States Supreme Court, which petition was dismissed on March 4, See Tagliaferri v. Winter Park Housing Authority, etc. et al., 143 S. Ct (2013). -3-

7 SC "because of the excessive amount of time [lapsing between the filing of the Complaint and the FCHR's decision thereon], respondent's [sic] filed a Federal Lawsuit (Pro Se)." On or about February 20, 2012, co-respondents Cambridge Management and Winter Park served their Motion to Dismiss for Lack of Jurisdiction (the "Motion to Dismiss"). As grounds, the Motion to Dismiss alleges that the Petitioners may pursue either administrative relief, or commence a civil action, not both. Respondents alleged that DOAH is without jurisdiction to hear the Petitioners' claim, and therefore, the action should be dismissed. The Respondents McMasters and Norton joined this Motion to Dismiss. A Recommended Order of Dismissal was entered on March 1, 2012 (the "Recommended Order"). The Recommended Order found that DOAH was without jurisdiction to hear the matter due to the Petitioners' ready admissions that a federal suit was pending based on the same factual allegations as found in the Petition. On or about March 8, 2012, the Petitioners filed Exceptions to the Recommended Order. Notwithstanding, on March 9, 2012, the Recommended Order was adopted by the FCHR and the cause was dismissed. A Final Order of the FCHR was entered on May 16, In the Final Order, the FCHR adopted the Administrative Law Judge's findings of fact and Because the Petitioners pursued a civil action in federal court, the co- -4-

8 conclusions of law, rejected the Exceptions, and dismissed the Petition in its entirety, with prejudice. The Petitioners appealed to the Fifth District Court of Appeal of Florida. On appeal, the Petitioners alleged the same arguments made below during the administrative proceedings, namely, that the FCHR erred in dismissing the DOAH Petition with prejudice without considering the merits of the claim. During the course of the appeal to the Fifth District, the Petitioners filed a Motion to Compel disclosure of the complete record. The Respondents filed a response explaining that the complete record had been disclosed. Even so, the Respondents agreed to supplement the record on appeal with certain documents, and provided the Fifth District with a number of documents for its review, notwithstanding their immateriality to the pending appeal. Upon full briefing, the Fifth District issued a per curiam citation opinion, citing section (4), Florida Statutes, with the following parenthetical: "(providing that person aggrieved by discriminatory practice may commence civil action in any appropriate court or petition for administrative determination to enforce fair housing rights)." Tagliaferri v. Cambridge Mmgt. Servs. et al., 107 So. 3d 1184 (Fla. 5th DCA 2013). This Petition followed. In this Petition, the Petitioners allege the same facts and legal argument set forth in the appeal below. (IB l-8). The Petitioners, however, now argue as -5-

9 grounds for this Court's jurisdiction that the "full record" from the lower tribunal was not disclosed pursuant to Florida Rule of Civil Procedure 9.200(a)(1). (IB 9). Notwithstanding this argument, the Petitioners concede that a federal lawsuit was filed prior to the commencement of the administrative action with DOAH. Regardless, the Petitioners cite to no legally sufficient reason in which to invoke this Court's jurisdiction and the Petition should be dismissed. SUMMARY OF ARGUMENT T11e jurisdiction of this Court is extremely limited; in particular, its discretionary jurisdiction, which need not be exercised even where there appears a basis to do so. In this case, no basis for exercising discretionary jurisdiction can be found in the record, the District Court of Appeal's decision below, or in the Petitioners' Initial Brief on Jurisdiction. The Petitioners have not set forth any legitimate basis for this Court to take discretionary jurisdiction over the Fifth District's per curiam citation opinion, and none exists. The Petitioners are essentially requesting that this Court become a court of immediate and full review of a routine opinion of the Fifth District Court of Appeal. This is wholly inappropriate and this Petition should be denied. -6-

10 ARGUMENT I. THE PETITIONERS FAIL TO SET FORTH ANY LEGALLY ACCEPTIBLE BASIS IN WHICH TO INVOI 522THIS COURT'S JURISDICTION AND REVIEW THEIR CLAIM. The jurisdiction of this Court is set forth in the Florida Rules of Appellate Procedure, and it is circumscribed, not plenary. Florida Rule of Appellate Procedure states in relevant part that the Court's discretionary jurisdiction is as follows: (a) Jurisdiction of Supreme Court. * * * (2) Discretionary Jurisdiction. The discretionary jurisdiction of the supreme court may be sought to review (A) decisions of district courts of appeal that (i) expressly declare valid a state statute; (ii) expressly construe a provision of the state or federal constitution; (iii) expressly affect a officers; class of constitutional or state (iv) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (v) pass upon a question certified to be of great public importance; (vi) are certified to be in direct conflict with decisions of other district courts of appeal; -7-

11 (B) orders and judgments of trial courts certified by the district court of appeal in which the appeal is pending to require immediate resolution by the supreme court, and (i) to be of great public importance, or (ii) to have a great effect on the proper administration of justice;.... Fla. R. App. P. Rule Nowhere in their Petition do the Petitioners cite to any subsection which would invoke the Florida Supreme Court's jurisdiction. The Petitioners merely argue that this Court should review the Fifth District's decision due to the fact that the Fifth District "didn't require the full record to be disclosed." (IB 12). This is an insufficient basis on which to accept jurisdiction and the Petition should be denied. Based upon the authority of Rule 9.030, it appears that the Petitioners are seeking jurisdiction under subsection (b)(iii), providing for discretionary review of a decision of the district court that directly conflicts with another decision on the same point of law. None of the other subdivisions for discretionary jurisdiction apply. See Fla. R. App. P (a)(2)(A)-(B); see also Allstate Ins. Co. v. Langston, 635 So. 2d 91 (Fla. 1995) (providing that questions of great public importance must be certified by the district court of appeal). -8-

12 Notably, the Fifth District rendered a per curiam citation opinion. This Court has explicitly held that it does not have jurisdiction to review such decisions. See Dodi Publishing Co. v. Editorial Amer.,.S.A., 385 So. 2d 1369 (Fla. 1980). The decision in Dodi has been extended to citation opinions, such as the one at issue here, which cite statutes and rules. See Gandy v. State, 846 So. 2d 1141, n.1 (Fla. 2003). Thus, this Court should decline to invoke its jurisdiction and deny the Petition. II. EVEN IF THIS COURT WERE TO FIND JURISDICTION EXISTED OVER THE PETITIONERS' CLAIMS, THAT JURISDICTION SHOULD NOT BE EXERCISED. Even if this Court were to conclude that it had discretionary jurisdiction over this matter, that jurisdiction should not be exercised. In the interest of judicial economy, this Court should not exercise jurisdiction to review a decision already correctly applying the applicable law. The Petitioners admittedly filed a federal lawsuit prior to filing the Petition and are therefore barred from seeking a formal administrative hearing on the identical facts and claims. The Petitioners' argument is based upon a misunderstanding of the statutes and procedure that must be followed by the administrative agencies and courts of law. -9-

13 Chapter 760, Florida Statutes, The Fair Housing Act, applies to claims of housing discrimination. The FCHR is charged with administration and enforcement of this Act. See (1), Fla. Stat. Section , Florida Statutes, pertains specifically to enforcement of the Fair Housing Act, and provides that any person claiming to be injured by a discriminatory house practice may file a complaint with the Florida Commission on Human Relations. See (1), Fla. Stat. Such complaint must be filed within one year after the occurrence of the alleged discriminatory housing practice. See (2), Fla. Stat. If, after 180 days the FCHR does not find any cause, or has not obtained voluntary compliance, the aggrieved party may either file a petition with DOAH or a civil action in the appropriate court to enforce their rights under chapter 760: If, within 180 days after a complaint is filed with the commission or within 180 days after expiration of any period of reference under subsection (3), the commission was unable to obtain voluntary compliance with ss , the person aggrieved may commence a civil action in any appropriate court against the respondent named in the complaint g petition for an administrative determination pursuant to s to enforce the rights granted or protected by ss [ (4), Fla. Stat. (emphasis added)]. The two remedies provided for in section (4), Florida Statutes, are mutually exclusive. Upon the pursuit of one, the Appellants may not pursue the other. See Thornhill v. Admiral Farragut Condo. Assoc., 2000 WL , at * 3-10-

14 (Fla. Div. Admin. Hrgs. Nov. 7, 2000) (finding that a petitioner was foreclosed from pursuing her administrative remedies because she chose to file a civil action, and explaining: "The language of Section (4), Florida Statutes (1999), makes it clear that an aggrieved person may choose either to proceed with a civil action to enforce the rights granted under the Florida Fair Housing Act or to seek to enforce those rights in a formal administrative proceeding. These remedies are, therefore mutually exclusive...." (emphasis added)). The Petitioners in this matter received a Notice of Determination of No Cause from the initial Petition to the FCHR on or about January 13, The Notice of Determination of No Cause specifically provides that the Petitioners could (1) re-file a complaint with HUD or the FCHR based on "newly discovered or previously unavailable information (if the complainants were within the oneyear time limit to file the complaint); (2) file a civil action "in the appropriate federal district court or state court"; or (3) request a formal administrative proceeding with DOAH within thirty (30) days of the receipt of the Notice of Determination of No Cause. On February 10, 2012, the Petitioners filed a Petition seeking a formal administrative proceeding by DOAH. Notwithstanding, almost nine months before the Petition was filed with DOAH, on or about May 19, 2011, the Petitioners filed a complaint with the U.S. District Court for the Northern District of Florida, which -11-

15 was given Case No. 6:ll-cv CEH-DAB. This federal court complaint asserted identical allegations of housing discrimination due to the alleged sexual relation as the FCHR Petition. There is no question that the factual allegations contained in the Petition are the same as those contained in the federal court complaint. Indeed, this is a fact that to which the Petitioners have readily admitted throughout the course of this litigation. Once tlie Petitioners chose to pursue their legal remedies in the federal court system, they were foreclosed from pursuing any further administrative remedies under sections and , Florida Statutes. The FCHR and DOAH were entirely without jurisdiction under the statute to entertain the administrative action once the Petitioners filed the federal complaint. The FCHR did not err by interpreting section (4), Florida Statutes, to permit the filing of either a civil action or an administrative Petition, not both. In fact, this interpretation is consistent with tlie plain language of the statute and is not unreasonable or erroneous. See Piper Aircraft, Corp. v. Schwendemann, 564 So.2d 546, 548 (Fla. 3d DCA 1990) (explaining that statutory construction of the term "or" it generally construed as a disjunctive, offering alternatives); Osorio, 898 So.2d at 190 ("[W]hen the language of the statute under interpretation is unambiguous and has a plain and ordinary meaning, the plain meaning should be given effect."). Moreover, substantial competent evidence exists to support the -12-

16 FCHR's finding that the federal action is based on identical facts and claims as tl10se alleged in the administrative Petition. Because the Petitioners chose the remedy of filing a federal action, the Petitioners were foreclosed from filing the same action with an administrative tribunal, and the FCHR properly dismissed the administrative Petition with prejudice. The Petitioners' new argument regarding the Fifth District's failed to require the "whole record to be disclosed" (IB 12) is similarly unavailing. As is discussed above, the Petitioners moved to compel disclosure of the complete record in the Fifth District. The Respondents filed a response explaining that the complete record had been disclosed. Even so, the Respondents agreed to supplement the record on appeal with certain documents, and provided the Fifth District with a number of documents for its review, notwithstanding their immateriality to the pending appeal. The correct law was applied by the Fifth District Court of Appeal and review by this Court is not warranted. CONCLUSION The Fifth District issued a per curiam citation opinion, which is not reviewable. This Court has specifically pronounced that it "will not re-weigh or re-evaluate the testimony in order to determine its jurisdiction when it is sought to be invoked upon the theory of conflict jurisdiction." Withlacoochee River Elec. Co-op., Inc. v. Tampa Elec. Co., 158 So. 2d 136, 137 (Fla. 1963). -13-

17 SC For the foregoing reasons, there is no jurisdictional basis for review by this Court because Petitioners have presented no grounds, let alone legally sufficient grounds, for this Court's review. The decision was correctly decided and review is not warranted. WHEREFORE, based upon the above facts and authorities, the Respondents, CHERYL NORTON and ROSALIE MCMASTERS, respectfully request that this Court decline jurisdiction over the Petition for Writ of Certiorari and dismiss the same, and grant any such other and further relief as this Court deems appropriate. Dated: May,

18 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic mail to: csgrondzik@floridahousinglaw.com, Carol S. Grondzik, Esquire, Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Counsel for Defendant Cambridge Management Services, Inc., 2155 Delta Boulevard, Suite 210-B, Tallahassee, FL 32303; mbowling@bellroperlaw.com, Michael H. Bowling, Esquire, Bell, Roper & Kohlmyer, P.A., Counsel for Winter Park Housing Authority, 2707 E. Jefferson Street, Orlando, FL 32803; The Florida Commission on Human Relations, 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida 32301; and via U.S. Mail to: Angela Tagliaferri and Betsy Stephens, Pro Se Petitioners, 825 S. Wymore Road, Apt. la, Altamonte Springs, FL 32714, on this, day of May, Respectfully submitted, Counsel for Respondents, CHERYL NORTON and ROSALIE MCMASTERS Dadeland Centre II, Suite South Dadeland Boulevard Miami, Florida katie.smith@csklegal.com emily.fernandez@cskle 1.com Telep one: ( By: SCOTT A. COLE FBN: KATHRYN L. SMITH FBN:

19 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.210(a), Fla. R. App. P., undersigned counsel hereby certifies that this brief is submitted in Times New Roman 14-point font. By: KATHRYN L. SMITH FBN: