Housing Opportunities Project for Excellence, Inc. v. Spv Realty, Lc , 2016 Fla. App. LEXIS 18680 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed December 21, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1132
Lower Tribunal No. 14-32184
________________
Housing Opportunities Project, etc., et al.,
Appellants,
vs.
SPV Realty, LC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
Rebull, Judge.
Disability Independence Group and Matthew W. Dietz, for appellants.
Lydecker│Diaz, and Laselve E. Harrison, Stephen Hunter Johnson and
Margaret H. Mevers, for appellee.
Legal Services of Greater Miami, Inc., and Jeffrey M. Hearne; Legal Aid
Society of Palm Beach County, and Tequisha Y. Myles, Sandra M. Powery and
Amanda Kleinrock (West Palm Beach); Florida Legal Services, Inc., and Peter P.
Sleasman (Newberry), for the Housing Umbrella Group of Florida Legal Services,
Inc., as amicus curiae.
Cheyanne M. Costilla (Tallahassee), General Counsel, for the Florida
Commission on Human Relations, as amicus curiae.
Before SUAREZ, C.J., and SHEPHERD and SALTER, JJ.
SHEPHERD, J.
The issue in this case is whether the Florida Fair Housing Act, sections
760.20-760.37 of the Florida Statutes, requires a private claimant to engage in a
statutory conciliation process directed by the Florida Commission on Human
Relations as a condition precedent to the filing of a civil action under the statute.
We hold that it does. A brief summary of the facts of this case will assist in
explaining our decision.
FACTUAL AND PROCEDURAL BACKGROUND
This case is a sequel to a case filed in the United States District Court for the
Southern District of Florida styled Housing Opportunities for Excellence, Inc., et al
v. SPV Realty, LC, Case No. 1:12-CV-24113-CMA. That case, based on the
federal Fair Housing Act, 42 U.S.C.A. §§ 3601-3631, was concluded in July 2013
by a Confidential Settlement Agreement and Release between the appellant here,
Housing Opportunities Project for Excellence, Inc. (“HOPE”)1 and four named
employees, and SPV Realty, LC, the owner of a rental apartment building in
1HOPE is a non-profit corporation which describes as its mission to ensure people
are offered the right to select housing of their choice without discrimination based
upon race, religion, color, national origin, sex, disability, marital or family status or
such other protected classes conferred by federal, state or local laws.
2
Miami-Dade County, Florida. While maintaining that at no point had it engaged in
any discriminatory practices, SPV Realty agreed that it would not do so in the
future, would make a $10,000 charitable donation to HOPE by a date certain,
direct at least $1,000 monthly to affirmatively market its services in African
American oriented media, and maintain sign-in sheets reflecting yearly training of
SPV Realty employees. The parties agreed that jurisdiction to enforce the
agreement would be in state court in Miami-Dade County, Florida.
A year later, on December 23, 2014, HOPE filed suit in the Eleventh
Judicial Circuit alleging that SPV Realty had breached all of the promises it made
a year earlier, including its promise of non-discrimination in the rental of units to
protected classes. In two additional counts, HOPE claimed SPV Realty’s post-
settlement rental practices violated the Florida Fair Housing Act, and SPV Realty
provided false and inaccurate information to potential rental applicants in protected
classes, in violation of section 760.23(3) of the Act. The latter two counts were
buttressed by detailed allegations of disparate treatment of four testers, similarly
situated in all respects except race, sent to the same SPV Realty rental office in the
same apartment building near in time to each other to inquire about the availability
of the same type of rental units.2 The testers were also joined as plaintiffs in the
2 Testers are individuals who, without an intent to rent or purchase a home or an
apartment, pose as renters or purchasers for the purpose of collecting evidence of
discriminatory housing practices. Gladstone Realtors v. Village of Bellwood, 441
U.S. 91, 97 (1979). The case filed in the United States District Court was based
3
latter two counts. The trial court dismissed these counts for failure of the appellant
to engage in the mandatory conciliation process, and both HOPE and the testers
have appealed.3
Analysis
It is well settled among the principles of statutory construction that “[i]f the
statute is plain and unambiguous and admits of but one meaning, the courts in
construing it will not be justified in departing from the plain and natural language
employed by the Legislature.” Gough v. State ex rel. Sauls, 55 So. 2d 111, 116
(Fla. 1951) (citing Armistead v. State ex rel. Smyth, 41 So. 2d 879, 882 (Fla.
1949)); Lindamood v. Office of State Attorney, 731 So. 2d 829, 833 (Fla. 5th DCA
1999) (“The statutory language of §112.3187 [of the Florida Whistleblower Act)]
is not ambiguous and the plain meaning of the statute must prevail.”); Metropolitan
Dade County v. Milton, 707 So. 2d 913, 915 (Fla. 3d DCA 1998) (“When the
language of a statute is clear and unambiguous, the statute must be given its plain
and ordinary meaning.”); see also 2A Sutherland Statutory Construction § 46:4
upon the same testing protocol.
3 We have jurisdiction in this case despite the fact that Count I, the breach of
settlement agreement count, remains pending because the order appealed is final as
to the individual testers. See Niesz v. R. P. Morgan Bldg., Co., 401 So. 2d 822,
823 (Fla. 5th DCA 1981) (holding order dismissing individual plaintiff was final
and appealable). For this reason, it is not necessary for us to decide whether the
order is final as to HOPE. See Coal. for Adequacy & Fairness in Sch. Funding,
Inc. v. Chiles, 680 So. 2d 400, 403 (Fla. June 27, 1996) (finding no jurisdictional
flaw in joining the Florida House of Representatives and Florida Senate as parties’
plaintiff in a case where other parties had standing).
4
(7th ed.) (November 2016 Update) (“Courts do not have the authority to ignore
plain and unambiguous language under the guise of interpretation.”). It is also
apodictic among the canons of judicial interpretation that in making the
determination, judicial interpreters should consider the entire text of a statute,
including its structure and the physical and logical relation of its many parts, when
applying the language of the statute to a set of facts. See Scalia & Garner, Reading
the Law: The Interpretation of Legal Texts, p. 167 (2012) (“Perhaps no
interpretative fault is more common than the failure to follow the whole-text
canon, which calls on the judicial interpreter to consider the entire text, in view of
its structure and of the physical and logical relation of its many parts.”).
The pertinent portions of the Florida Fair Housing Act necessary for us to
decide the issue raised are found in section 736.34 of the Act, titled
“Enforcement.” They read as follows:
(1) Any person who claims to have been injured by a discriminatory
housing practice or who believes that he or she will be injured by a
discriminatory housing practice that is about to occur may file a
complaint with the commission…. Within 100 days after receiving a
complaint, or within 100 days after the expiration of any period of
reference under subsection (3), the commission shall investigate the
complaint and give notice in writing to the person aggrieved whether
it intends to resolve it. If the commission decides to resolve the
complaint, it shall proceed to try to eliminate or correct the alleged
discriminatory housing practice by informal methods of conference,
conciliation, and persuasion.
....
5
(4) 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),[4] the commission has been unable to
obtain voluntary compliance with ss. 760.20-760.37, the person
aggrieved may commence a civil action in any appropriate court
against the respondent named in the complaint or petition for an
administrative determination pursuant to s. 760.35 to enforce the
rights granted or protected by ss. 760.20-760.37.
(Emphasis added.) Only the Florida Commission on Human Relations is exempt
from complying with the exhaustion requirement in the Act. Section 760.34(7)(a)
of the Act provides:
The commission may institute a civil action in any appropriate court if
it is unable to obtain voluntary compliance with ss. 760.20-760.37.
The commission need not have petitioned for an administrative
hearing or exhausted its administrative remedies prior to bringing a
civil action.
A plain reading of the Florida Fair Housing Act reveals it admits of just one
meaning, that a private citizen or entity may not pursue a civil action for a
violation of the Florida Fair Housing Act prior to filing a complaint with the
Commission and affording the Commission the opportunity to resolve the
complaint informally. Section 736.34(1) of the Act authorizes a person who
considers himself aggrieved to file a complaint with the Commission. The
4 Subsection (3) requires the Florida Commission on Human Relations to offer any
local fair housing agency with a “substantially equivalent” fair housing law the
opportunity to investigate and prosecute any fair housing complaint within its
jurisdiction in the stead of the Commission, provided that the local enforcement
official commences proceedings within thirty days of being notified of the
complaint. § 760.34(3).
6
Commission then has up to one-hundred days (or one-hundred days from the date
of reference to a local agency under subsection (3) of section 736.34) to resolve the
complaint. Thereafter, “[i]f within 180 days . . . the commission has been unable
to obtain voluntary compliance, the person aggrieved may commence a civil action
in any appropriate court . . . . § 760.34(4). Only the Commission may circumvent
this procedure. § 760.34((7)(a). To hold, as HOPE would have us do, that the
prescribed administrative process and a civil action may run concurrently would
render meaningless subsection (4) of the “Enforcement” section of the law‒a
judicially interpretive “no-no” under the principle that a construction of a statute
which renders superfluous, meaningless or inoperative any of its provisions should
not be adopted by the courts. State v. Goode, 830 So. 2d 817, 824 (Fla. 2002). It
also would run afoul of the often overworked,5 but here appropriate, interpretive
doctrine, expresio unius est exclusio alterius–the expression of one thing implies
5The rule is often used in a dangerously over-expansive manner in constitutional
interpretation. See, e.g., Nichols v. State ex. Rel. Bolon, 177 So. 2d 467, 469 (Fla.
1965) (declining to apply the rule to provisions of the state constitution); see also
Bush v. Holmes, 919 So. 2d 392, 420 (Fla. 2006) (Bell, J. dissenting) (explaining
that the expressio unius maxim should rarely be applied to interpret the state
constitution because the maxim “flies directly in the face” of the principle that
“[a]ll power which is not expressly limited ... in our State Constitution remains
with the people”) (quoting Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887, 891
(1991)); Peters v. Meeks, 163 So. 2d 753, 755, (Fla. 1964) (explaining that unlike
the federal constitution, which is a grant of power, state constitutions are a
limitation on the otherwise “inherent right [of each department of government] to
accomplish all objects naturally within the orbit of that department”) (quoting Sun
Ins. Office, Ltd. v. Clay, 133 So. 2d 735, 742 (Fla. 1961)).
7
the exclusion of the other. See Gay v. Singletary, 700 So. 2d 1220, 1221 (Fla.
1997). In the case before us, the Legislature expressly lists from whom and when
administrative exhaustion is not required, but does not include individuals or fair
housing organizations within the list. We conclude from the plain text of the
statute, its structure and the relation of its parts that it admits of just one meaning,
that the Legislature intended that all persons and entities except the Florida
Commission on Human Relations must comply with and exhaust the statutory
conciliation process before they may commence a civil action under the Florida
Fair Housing Act. Until the person or entity does so, the trial court lacks subject
matter jurisdiction to hear the case.
The only other court that has considered whether the Florida Fair Housing
Act contains an administrative exhaustion requirement is the Fourth District Court
of Appeal in Belletete v. Halford, 886 So. 2d 308 (Fla. 4th DCA 2004). In that
case, Wayne Belletete sued an apartment building owner for rental discrimination
under the Florida Fair Housing Act, for violating his civil rights under sections
760.01-760.11 of the Florida Civil Rights Act, and for discrimination on the basis
of his HIV-positive condition under section 760.50 of the Florida Statutes,6 after he
6 The causes of action alleged by Belletete under the Florida Civil Rights Act, the
Florida Fair Housing Act, and the law prohibiting discrimination against persons
with HIV-AIDS are all found in the same chapter of the Florida Statutes, Chapter
760, titled “Civil Rights.” Chapter 760 also includes a genetic testing privacy law,
section 760.40, a provision empowering the Attorney General to bring a civil or
administrative action on behalf of an individual injured as a result of interference
8
voluntarily vacated an apartment at the request of the apartment building owner
when one of the other occupants of the apartment building discovered he was HIV-
positive and refused to live with him. The Belletete court found, as do we in the
case before us, that the trial court lacked subject matter jurisdiction to hear
Belletete’s Fair Housing Act claim because he had not participated in the statutory
conciliation process in section 760.34 of the Act.
The Belletete court informed its analysis by examining the Florida Civil
Rights Act. The Florida Civil Rights Act contains much of the same language as
the Florida Fair Housing Act. 886 So. 2d at 310 (noting that sections 760.34 and
760.35 contain much the same language and structure as their Florida Civil Rights
Act counterpart, section 760.11); see also Hankey v. Yarian, 755 So. 2d 93, 96
(Fla. 2000) (noting that the legislative intent with respect to a given phrase can be
determined by examining other uses of the phrase in a similar context). For
example, the parallel section to the Florida Fair Housing Act’s “Enforcement”
provision, section 760.34, is section 760.11 of the Florida Civil Rights Act, titled
“Administrative and civil remedies.” Section 760.11 states in relevant part that
“[a]ny person aggrieved by a violation ss. 760.01-760.10 may file a complaint
with the commission.” § 760.11 (emphasis added). In almost identical language,
with his “rights secured by the State Constitution or laws of th[e] state”, section
760.51, and a law prohibiting discrimination in evaluating membership in clubs
that have more than 400 members, section 760.60.
9
section 760.34(1) of the Florida Fair Housing Act provides that “[a]ny person who
claims to have been injured by a discriminatory housing practice or believes that he
or she will be injured by a discriminatory practice that is about to occur may file a
complaint with the commission.” § 760.34(1) (emphasis added). Section 760.11
further provides that following the 180th day after filing a complaint with the
Florida Commission on Human Relations, an aggrieved person may bring a civil
action against the person named in the complaint or request an administrative
hearing. § 760.11(4),(8). Section 760.34(4) provides that following the 180th day
after filing a complaint with Florida Commission on Human Relations, an
aggrieved person may commence a civil action or petition for an administrative
determination. Noting that under section 760.11(1) the “may file a complaint”
language has been interpreted to mean that “such a complaint must be filed with
the Commission or its federal counterpart by anyone who wishes to pursue either a
lawsuit or administrative proceeding” under the Florida Civil Rights Act, 886 So.
2d at 310 (quoting Ross v. Jim Adams Ford, Inc., 871 So. 2d 312, 315 (Fla. 2d
DCA 2004)), the Billetete court concluded that the nearly identical language in
section 760.34(4) of the Florida Fair Housing Act should be given the same
interpretation. Considering the language of this provision in the full context of the
Florida Fair Housing Act, and the fact that the Legislature has omitted to require
administrative exhaustion in three other sections of the same “Civil Rights” chapter
10
of the Florida law, the HIV-AIDS discrimination statute, section 760.50, the
provision empowering the Attorney General to bring a civil or administrative
action on behalf of an individual injured as a result of interference with “rights
secured by the State Constitution or laws of th[e] state”, section 760.51, and the
provision prohibiting discrimination in evaluating membership in private clubs that
have more than 400 members, section 760.60, it is clear the Legislature knew how
to include and exclude administrative exhaustion in the anti-discrimination laws it
has adopted, and chose to include the requirement in the Florida Civil Rights Act
and the Florida Fair Housing Act.
HOPE did not address below, and does not address here, the plain and
unambiguous language of the Florida Fair Housing Act set forth above and the
canons establishing the primacy of plain language in statutory interpretation.
Rather, joined by its amicus, the Florida Commission on Human Rights, HOPE
argues that in enacting the Florida Fair Housing Act, the Florida Legislature
specifically intended to duplicate the federal cause of action. HOPE also argues
that because the federal Fair Housing Act allows an aggrieved individual to select
between immediate suit in federal court, “or a simple, inexpensive, informal
conciliation procedure to be followed by litigation should conciliation efforts fail,”
Gladstone Realtors, 441 U.S. at 104, the state Act is an ineffectual weak sister to
the federal Act. Whether that be true or not, neither HOPE nor the Commission
11
have identified any legislative statement indicating the federal Fair Housing Act
was intended to be codified verbatim into the Florida Fair Housing Act. Cf. Winn-
Dixie Stores, Inc. v. Reddick, 954 So. 2d 723, 727 (Fla. 1st DCA 2007) (noting it
was appropriate to look to federal Title VII case law to analyze the Florida Civil
Rights Act’s attorney fee provision because Section 760.11(5) explicitly states that
“it is the intent to the Legislature that this provision…be interpreted in a manner
consistent with federal case law involving Title VII”). Whether the Florida Act
should be amended to conform precisely to the federal Act is a matter for the
Legislature.
In fact, since at least 2012, the Florida Commission on Human Relations has
sought legislation that would amend the Florida Fair Housing Act to incorporate
verbatim the language of 42 U.S.C. § 3613(a)(2). See, e.g., Fla. S.B. 442 (2012)
(proposing to amend section 760.35 to state that “[an] aggrieved person may
commence a civil action under this section whether or not a complaint has been
filed under s. 760.34 and without regard to the status of that complaint”); Fla. H.B.
283 (2012) (same). On July 8, 2015, after years of accepting the status quo,
HUD’s Deputy Assistant Secretary for Enforcement and Programs, Sara Pratt,
notified the Executive Director of the Florida Commission on Human Relations
that HUD “will take action to suspend [the Commission’s] participation in the Fair
Housing Assistance Program,” which funds Commission operations to the tune of
12
some $600,000 per year, approximately two-thirds of its operating fund, if the
issue is not “satisfactorily resolved” by an amendment to the Florida Fair Housing
Act by March 12, 2016, the end of the most recent legislative session.7 Brief of
Fla. Comm’n on Human Relations as Amicus Curiae, Exhibit B. Despite
Commission efforts, the attempt to amend the statute again failed. See Fla. S.B.
7008 (2016); Fla. H.B. 336 (2016). We feel no compunction to do for the
Commission or any advocacy group what the Legislature itself will not do. We
believe Belletete was correctly decided.
Finally, we are not swayed by opinions issued by some of our local federal
brethren who have declined to follow Belletete. For example, in Milsap v.
Cornerstone Residential Management, Inc., 2010 WL 427436 (S.D. Fla. Feb. 1,
2010), Judge Kenneth Marra of the United States District Court for the Southern
District, after having first granted the defendant’s motion to dismiss plaintiffs’
Florida Fair Housing Act claims relying on Belletete, reversed himself after the
Attorney General, as a co-enforcer under the Act with the Florida Commission on
Human Relations, moved to intervene for the purpose of arguing that the Florida
Fair Housing Act does not require exhaustion of administrative remedies. Counsel
for SPV, in his Answer Brief, represents that Florida’s current Attorney General
has recently argued in State, Department of Legal Affairs, Office of Attorney
7 HUD did not pull the trigger on federal funding after the Commission was unable
to obtain an amendment to the Act.
13
General v. Leisure Village, Inc. of Stuart, 166 So. 3d 838 (Fla. 4th DCA 2015),
reh’g denied (July 6, 2015), that administrative exhaustion is required under the
Florida Fair Housing Act, a representation not challenged by HOPE. The
remaining federal cases cited by HOPE all preceded Leisure Village. See Serota v.
Carriage Hills Condo. Ass’n, 2014 WL 3894264 (S.D. Fla. May 27, 2014);
Tarantino v. Pine Ridge N. I Condo. Ass’n, 2010 WL 1687744 (S.D. Fla. Apr. 26,
2010). Under Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts in
diversity of citizenship cases must apply the law of the state in which they sit.
Moreover, a federal court must follow the decision of an intermediate appellate
state court in the absence of other persuasive indications that the highest court of
the state would decide otherwise. Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775
(11th Cir. 2000) (citing Insurance Co. of N. Am. v. Lexow, 937 F.2d 569, 571
(11th Cir.1991)). With this decision, three panels of one district court of appeal in
this state, comprising a total of nine separate judges,8 and now two on this court,
have concluded that administrative exhaustion is a pre-condition to filing a civil
action under the Florida Fair Housing Act. If it could ever be said, as Judge Marra
8See Leisure Village, 166 So. 3d at 840 ( Stevenson, Ciklin and Klingensmith);
Sun Harbor Homeowners' Ass'n, Inc. v. Bonura, 95 So. 3d 262 (Fla. 4th DCA
2012) (May, C.J., Damoorgian and Connor); and Belletete, 886 So. 2d at 310(Gunther, Stone and Taylor).
14
once concluded, that Belletete is an “anomaly” that could be ignored, Milsap, 2010
WL 427436 at *4, that is no longer the case. Galindo, 203 F.3d at 775.
Nevertheless, HOPE and the Florida Commission on Human Relations urge
that when the Legislature models a statute on a federal statute, as concededly the
state Legislature did in this case, that it (and by extension this court) cannot vary
the law either substantively or procedurally from the correlative federal law. The
Commission is not unbiased in taking that position. We do not fault HOPE for so
doing. After all, HOPE, as an advocate for a cause, has every right to do so.
However, while we might admit to an erosion of roles between state and federal
responsibilities in our federal system in recent times, we are not yet colonies,
territories, or agents of the United States government.9 It may be that, as crafted by
the Florida Legislature, the Florida Fair Housing Act is less perfect than the federal
Fair Housing Act. On the other hand, the Legislature may have decided to
underscore what it considered to be a more expeditious and less burdensome
9 The “great deference” mantra cited by the dissent illustrates the point. The
refrain seems to have become so much a part of our legal culture as to be
incontestable. An important separation-of-powers issue lurks just below the
surface, however. There is no reason for the rule when we are as capable of
reading the statute or rule as the agency, which may well have its own an agenda.
“[A] court need not defer to an agency’s construction or application of a statute if
special agency expertise is not required, or if the agency’s interpretation conflicts
with the plain and ordinary meaning of the statute.” Fla. Hosp. v. Fla. Agency for
Health Care Admin., 823 So. 2d 844, 848 (Fla. 2d DCA 2002); see also Donato v.
Am. Tel. Co., 767 So. 2d 1146, 1153-54 (Fla. 2000) (rejecting deference rule in
favor of plain meaning of the statute); City of Coral Gables Code Enforcement Bd.
v. Tien, 967 So. 2d 963, 966 (Fla. 3d DCA 2007) (same).
15
method of resolving housing complaints. Whatever may have been the motivation,
it is up to the Legislature to say what it means if there is anything more to be said,
not this court.
In the meanwhile, it must be said that the residents of this state are not
disadvantaged by the current state of the law. If the Florida Fair Housing Act is
inadequate to satisfy an individual’s immediate need for relief from housing
discrimination, that individual can file an action in either state or federal court
under the federal Fair Housing Act without engaging in administrative exhaustion.
As to the Commission, it appears their interest in this matter is as much self-
interest as legal interest. Yet even there, the General Counsel for the Commission,
who argued the case before us, stated with a moral certainty, in response to more
than one inquiry by the court during the course of the oral argument, that if the
United States Department of Housing and Urban Development suspends funding to
the Commission, the Florida Legislature would assuredly pick up the tab. This, of
course, is not our bailiwick. Our task is to decide the legal issue before us. We
have no difficulty determining as a matter of law that the Florida Fair Housing Act
requires a private claimant to exhaust its administrative remedies before filing a
civil action under the statute.
Affirmed.
SUAREZ, C.J., concurs.
16
Housing Opportunities Project for Excellence, Inc. v. SPV Realty, LC
Case No. 3D15-1132
SALTER, J. (dissenting).
I respectfully dissent. I would reverse the trial court’s dismissal of the
claims of housing discrimination and remand the case so that the claims can
proceed. I would also certify conflict with the decision of the Fourth District Court
of Appeal in Belletete v. Halford, 886 So. 2d 308 (Fla. 4th DCA 2004), in order
that the Supreme Court of Florida may be afforded an opportunity to decide this
important and recurring issue for landlords and tenants throughout the State.
Analysis
At the outset, I agree with the majority that the trial court was constrained to
follow Belletete; this Court has never ruled on the underlying question.10 That
question is: must prospective tenants claiming discrimination in housing under the
Florida Fair Housing Act (“FFHA”) pursue an administrative claim with the
Florida Commission on Human Relations as a precondition to the commencement
of a circuit court lawsuit asserting those claims?
10 The circuit court was duty-bound to apply Belletete as a decision by the single
District Court of Appeal in Florida to have decided the question. Pardo v. State,
596 So. 2d 665, 666-67 (Fla. 1992). This Court is not bound by Belletete,
however.
17
The answer should be “no,” based on a point conceded by the
landlord/appellee in its amended motion to dismiss below: “The Federal Fair
Housing Act and Florida Fair Housing Act are substantively identical, and
therefore the same legal analysis applies to each. Bhogaita v. Altamonte Heights
Condo. Ass’n, Inc., 765 F. 3d 1277, 1285 (11th Cir. 2014).” The Second District
has expressed the same opinion: “The Florida Legislature essentially codified the
Federal Act when it enacted the Florida Fair Housing Act.” Dornbach v. Holley,
854 So. 2d 211, 213 (Fla. 2d DCA 2002).
There is no requirement that a tenant exhaust administrative remedies before
commencing a housing discrimination lawsuit against a landlord under the federal
Fair Housing Act. “Congress intended to provide all victims of Title VIII
violations two alternative mechanisms by which to seek redress: immediate suit in
federal district court, or a simple, inexpensive, informal conciliation procedure, to
be followed by litigation should conciliation efforts fail.” Gladstone, Realtors v.
Village of Bellwood, 441 U.S. 91, 104 (1979).11
Section 760.30(1) of the FFHA states that “The authority and responsibility
for administering ss. 760.20-760.37 is in the commission.” Sections 760.20
through 760.37 constitute Florida’s Fair Housing Act, and section 760.22(1)
defines “commission” to mean the Florida Commission on Human Relations. In
11“Title VIII” refers to 42 U.S.C. sections 3601 - 3631, the federal Fair Housing
Act.
18
the present case, the Florida Commission on Human Relations sought and obtained
permission to file an amicus curiae brief. The Florida Commission on Human
Relations, through its general counsel, argues in its brief persuasively and, in my
view, correctly that:
1. The Commission has the authority and responsibility to enforce the
FFHA.
2. The Commission has the authority to investigate complaints filed under
both the state and federal fair housing laws through its contract with the United
States Department of Housing and Urban Development.
3. The FFHA, like the federal Fair Housing Act, was not intended to require
victims of housing discrimination to exhaust administrative preconditions prior to
filing a civil action.
4. The Fourth District, in Belletete, did not consider the legislative history
of the FFHA. Instead, the words “may file a complaint” were interpreted in the
same way those words were interpreted in the Florida Civil Rights Act (not the
FFHA), even though Belletete presented a fair housing issue, not a civil rights
claim.12
12 Civil rights claims under the Florida Civil Rights Act, like such claims under the
federal Civil Rights Act, require exhaustion of administrative remedies; see section
760.07 of the Florida Civil Rights Act, requiring the exhaustion of the
administrative remedy before commencing a lawsuit under section 760.11 of that
Act. The FFHA contains no such exhaustion requirement. Note also that the
Florida Commission on Human Relations administers both the Florida Civil Rights
19
We should not dismiss the Commission’s analysis and conclusion.
An agency’s interpretation of the statute it is charged with
enforcing is entitled to great deference. See Bellsouth
Telecommunications, Inc. v. Johnson, 708 So. 2d 594, 596 (Fla.
1998). Further, a court will not depart from the contemporaneous
construction of a statute by a state agency charged with its
enforcement unless the construction is “clearly erroneous.”
Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002).
In the present case, the Florida Commission on Human Relations’
conclusion, in its brief filed here, is not “clearly erroneous” and is entitled to the
“great deference” the Supreme Court of Florida requires for the Commission’s
“interpretation of the statute it is charged with enforcing.” Id.Textualism and Statutory Interpretation
The majority opinion includes numerous references to the “whole-text
canon” and to the canons of statutory interpretation to support its result. In fact,
however, a careful textual analysis compels a contrary result and supports the
position of the Florida Commission on Human Relations in this case. There are
two telltale provisions that highlight the differences between the Florida Civil
Rights Act and the FFHA.
First, as noted in footnote 3 of this dissent, section 760.07 of the Florida
Civil Rights Act provides that, for a claim of unlawful discrimination under any
Florida statute, equitable remedies and damages “provided for in this section” may
Act and the FFHA.
20
be considered “only after the plaintiff has exhausted his or her administrative
remedy.” (Emphasis provided). In the present case, the appellants did not
commence their claim under “this section” of the Florida Civil Rights Act; instead,
they commenced their civil action seeking relief under section 760.35(1) of the
FFHA. That section does not contain an exhaustion of administrative remedies
requirement. The optional administrative claim “may” be filed under section
760.34, but it is one of the “two alternative remedies” provided to victims of
federal housing discrimination, Gladstone, 441 U.S. at 104, and the corresponding
remedies provided by Florida in the FFHA.
The second textual signpost is found in sections 760.34(6) and 760.35(1) of
the FFHA, which expressly address the possibility that administrative and judicial
proceedings on a housing discrimination claim may pend simultaneously. Section
760.34(6) states: “Whenever an action filed in court pursuant to this section or s.
760.35 comes to trial, the commission shall immediately terminate all efforts to
obtain voluntary compliance.” And section 760.35(1) specifies that a court
shall continue a civil case brought pursuant to this section or s.
760.34 from time to time before bringing it to trial if the court
believes that the conciliation efforts of the commission or local
agency are likely to result in satisfactory settlement of the
discriminatory housing practice complained of in the complaint
made to the commission or to the local agency and which practice
forms the basis for the action in court.
21
No such option for parallel administrative and judicial proceedings is included
within the Florida Civil Rights Act.
The majority opinion, like Belletete, ignores these specific textual
differences. The Florida Commission on Human Relations, empowered to enforce
both the Florida Civil Rights Act and the FFHA, has recognized the differences
and has urged us to do so as well. We should.
The Attorney General of Florida’s Analysis in 2008, and the Federal Cases
In 2008—addressing the precise issue presented in this case, but in a federal
lawsuit in which the plaintiffs asserted housing discrimination claims under the
FFHA—then-Attorney General Bill McCollum successfully intervened and
persuaded the United States District Court for the Southern District of Florida that:
(a) the FFHA is to be construed consistently with federal law, and liberally
construed in favor of home seekers;13 (b) the decision in Belletete is “contrary to
the express language of state and federal housing laws” and “is an anomaly and
conflicts with Gladstone and the long line of cases holding that complainants who
sue under the Fair Housing Act are entitled to immediate judicial review;” (c)
exhaustion of administrative remedies is not required under the FFHA, and (d)
13 The Attorney General’s motion cited United States v. Housing Authority of the
City of Chickasaw, 504 F. Supp. 716, 732 (S.D. Ala. 1980), for the liberal
construction standard.
22
“there are compelling policy reasons for not requiring exhaustion in housing
cases.”14
After considering the Attorney General of Florida’s analysis, the federal
court reconsidered its dismissal of the FFHA claims (based on a failure to exhaust
administrative remedies): “The Court is now of the opinion that were this issue
before the Florida Supreme Court, that Court would not follow the Belletete
decision on this narrow issue, and that this Court’s ruling dismissing the FFHA
claims for failure to exhaust administrative remedies based on Belletete was
incorrect.” Milsap v. Cornerstone Residential Mgmt., Inc., 2010 WL 427436, *1
(S.D. Fla. 2010).
The Court agrees with Plaintiffs and the Attorney General that the
Belletete decision seems to be an anomaly. Belletete is the only
appellate decision in Florida on the question of administrative
exhaustion under the FFHA, and the opinion did not follow the
established tenet of statutory construction: “... if a state law is
patterned after a federal law on the same subject, the Florida law will
be accorded the same construction as given to the federal act in the
federal courts.” State v. Jackson, 650 So. 2d 24, 27 (Fla. 1995). The
Belletete court did not consider Gladstone and the long line of state
and federal cases in which courts interpreting the FFHA have utilized
the interpretation given by federal courts of the nearly identically
worded federal act.
Id. at *4 (footnote and citations omitted).
14 The quotations are from the Attorney General’s memorandum of law filed in
Milsap, cited in full in the paragraph which follows the excerpts.
23
Milsap was followed in a 2014 decision of the United States District Court
for the Southern District of Florida, Serota v. Carriage Hills Condominium Ass’n,
Inc., 2014 WL 3894264 (S.D. Fla. 2014). That case also involved the issue before
us—whether the claims under the FFHA required an exhaustion of administrative
remedies prior to the commencement of litigation. The court held that it did not.
Leisure Village
The majority opinion suggests that the current Attorney General of Florida
now favors the “exhaustion of administrative remedies” requirement in FFHA
cases, based on the 2015 case of State, Department of Legal Affairs, Office of
Attorney General v. Leisure Village, Inc. of Stuart, 166 So. 3d 838 (Fla. 4th DCA
2015). The issue raised by the Department of Legal Affairs in that case, however,
was whether the trial court had erred in dismissing a claim under the FFHA
because of collateral estoppel or under the doctrine of law of the case. The
Department acted on behalf of a tenant seeking accommodation for her service
dog. Although discussing Belletete for its exhaustion of remedies requirement, the
current Attorney General and the Fourth District did not address, in Leisure
Village, (a) the position of the Florida Human Relations Commission on that point,
though the Commission is the agency charged with enforcement of the FFHA, (b)
the position of the prior Attorney General on the specific issue of exhaustion of
24
administrative remedies, or (c) the post-Belletete federal cases. Nor has the current
Attorney General filed any statement of position in the present case.
Proposed Legislative Amendments
Finally, the landlord/appellee and the majority point to proposed legislative
amendments to the FFHA which would eliminate any misunderstanding of the
exhaustion requirement imposed by the Fourth District in Belletete. The Florida
Commission on Human Relations sought the amendments in order to avoid a
possible loss of funding by the U.S. Department of Housing and Urban
Development. The proposed amendments died in committee before the end of the
legislative sessions in which they were offered—they were not voted down by the
Legislature.
A review of the proposed amendment bills, the legislative staff analyses, and
the bill tracking summaries prepared by the 2016 Legislature,15 for example, does
not support an inference that the Legislature disapproved of the proposed
amendments. The 2016 bill in the Florida House was approved 11-0 by the Civil
Justice Committee but was not taken up by the Government Operations
Appropriations Subcommittee before the end of the legislative session. The
counterpart bill in the Florida Senate was approved for submission as a Committee
Bill by a unanimous vote of the Governmental Oversight and Accountability
15 The appellee filed these documents with the Court.
25
Committee. It was approved unanimously by the Appropriations Subcommittee on
General Government, by the full Appropriations Committee, and by a vote of 38-0
in the full Senate. Inaction by the House signifies neither rejection nor any
position on the exhaustion issue before us. If anything, it does appear that all
Florida legislators to vote on the amendments voted in favor of them.
Conclusion
The majority has incorrectly engrafted the exhaustion requirement in the
Florida Civil Rights Act, Part I of Chapter 760 (sections 760.01 - 760.11), into the
FFHA, Part II of Chapter 760 (sections 760.20 – 760.37). Sections 760.07 and
760.11(4) of the Florida Civil Rights Act, like their counterparts in the federal
Civil Rights Act, Title VII, include an exhaustion requirement. The FFHA
includes no such requirement, because it was patterned after the Federal Fair
Housing Act, Title VIII of the Civil Rights Act. “The Florida Fair Housing Act
contains statutory provisions that are substantively identical to the federal Fair
Housing Act, and the facts and circumstances that comprise the federal and state
fair housing claims are the same.” Loren v. Sasser, 309 F.3d 1296, 1299 n. 9 (11th
Cir. 2002). The FFHA also includes sections 760.34(6) and 760.35(1), which
clearly contemplate that a housing discrimination claim may be pending
simultaneously with the Commission and in court, as parallel rather than serial
remedies.
26
The majority has also failed to give “great deference” to the interpretation of
the applicable statutes provided by the Florida Commission on Human Relations in
its brief filed in this case. The Commission is the agency charged by statute with
enforcing both the Florida Civil Rights Act and the FFHA. Similarly, the federal
courts that have considered this issue, including claims under both the federal Fair
Housing Act and the FFHA, have determined that plaintiffs need not exhaust
administrative remedies before asserting their claims.
Finally, the majority’s opinion will also burden tenants in discriminatory
eviction cases, which are filed under an expedited summary procedure, by
preventing the tenants from raising FFHA claims as counterclaims pending
assertion and exhaustion of administrative remedies. See Ch. 51, Fla. Stat., and
§ 83.59(2), Fla. Stat. (2016).
There is neither logic nor a textual basis for imposing this burdensome, time-
consuming requirement on victims of housing discrimination under state law when
no such burden exists under the federal law that has been, and remains, the
template for such claims. For all these reasons, I dissent. I respectfully submit that
we should reverse the trial court’s dismissal order and remand the case for further
proceedings. In doing so, I would also certify our decision to the Supreme Court
of Florida based on direct conflict with the Fourth District’s decision in Belletete v.
27
Halford, 886 So. 2d 308 (Fla. 4th DCA 2004), pursuant to Florida Rule of
Appellate Procedure 9.030(a)(2)(A)(vi).
28