STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADALBERTO DIAZ, )

)

Petitioner, )

)

vs. )

) PANAMA CITY HOUSING AUTHORITY, )

)

Respondent. )

Case No. 10-3164

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 19, 2010, in Panama City, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings. Pursuant to the agreement of the parties, Petitioner participated in the hearing by telephone conference call from Kissimmee, Florida.

APPEARANCES

For Petitioner: Adalberto Diaz, pro se

2307 Boggy Creek Road, Box 38

Kissimmee, Florida 34744

For Respondent: William C. Henry, Esquire

Burke Blue Hutchison Walters & Smith, P.A.

16215 Panama City Beach Parkway Panama City Beach, Florida 32413

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against Petitioner based on his handicap contrary to Section 760.23, Florida Statutes (2009), Fair Housing Act, as amended (the Act).

PRELIMINARY STATEMENT

On or about March 9, 2010, Petitioner Adalberto Diaz (Petitioner) filed a Housing Discrimination Complaint. The complaint alleged that Respondent, Panama City Housing Authority (Respondent), had discriminated against Petitioner based on Petitioner’s handicap. Specifically, the complaint stated that Respondent had refused to make a reasonable accommodation for his disability.

On May 20, 2010, the Florida Commission on Human Relations (FCHR) issued a Determination: No Cause. Petitioner filed a Petition for Relief on or about June 1, 2010. FCHR referred the petition to the Division of Administrative Hearings (DOAH) on June 9, 2010. DOAH assigned the case to Administrative Law Judge Daniel M. Kilbride.

On June 17, 2010, Respondent filed a Response to Initial Order and Motion for Summary Hearing. Judge Kilbride issued an Order dated June 28, 2010, granting the request for a change in venue and reserving ruling on the Motion for Summary Hearing.

DOAH transferred the case to the undersigned on July 2, 2010. That same day, the undersigned issued an Order Denying Motion for Summary Hearing.

A Notice of Hearing dated July 2, 2010, scheduled the hearing for July 19, 2010.

On July 7, 2010, Petitioner filed a request to participate in the hearing by telephone conference call. On July 12, 2010, the undersigned issued an Order Allowing Testimony by Telephone.

When the hearing commenced, a notary public at Petitioner’s location confirmed Petitioner’s identity. The notary then administered the oath to Petitioner and his cousin, Sonia Maldonado.

During the hearing, Petitioner testified on his own behalf.

His cousin also testified. He offered no exhibits.

Respondent presented the testimony of three witnesses.

Respondent offered seven exhibits that were accepted into evidence.

There was no court reporter at the hearing. Accordingly, there is no transcript of the proceeding.

Respondent timely filed a Proposed Recommended Order on July 23, 2010. Petitioner filed a post-hearing letter on July 27, 2010.

Reference hereinafter is to Florida Statutes (2009), unless otherwise noted.

FINDINGS OF FACT

1. Respondent is a public housing authority that administers the U.S. Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, known as the “Section 8” program, within Bay County, Florida, pursuant to 42 U.S.C.

   § 1437f.

   
   

2. Under the Section 8 program, Respondent uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased “unit” directly to the landlord. The Section 8 tenant pays the balance of the monthly rent to the landlord.

3. The percentage paid by Respondent on each Section 8 voucher is determined by the family’s size, income, medical expenses and other similar factors. The percentage is reevaluated annually when the voucher holder is “recertified” for continuing eligibility for the Section 8 program by Respondent’s staff. As part of each recertification, the voucher holder signs a form listing “Family Obligations” required by HUD. In part, the “Family Obligations” require a Section 8 tenant to keep utilities on in the unit and to give the landlord and Respondent written notice before moving out of a unit.

4. After Petitioner moved from New Jersey to Panama City, Florida, he received a Housing Choice Voucher from Respondent on March 23, 2005. He executed a lease for a HUD-approved unit on

   
   

   March 22, 2005. The lease was originally for a term of one year and then automatically became a month-to-month tenancy.

   Paragraph 27 of the lease requires 14-days’ written notice to terminate the lease.

5. On June 16, 2009, Petitioner visited Respondent’s office and spoke with Andrea Lawson, the Assistant Section 8 Coordinator. She knew Petitioner from several re-certifications she had conducted on his voucher, the most recent one being on February 4, 2009.

6. On June 16, 2009, Petitioner told Ms. Lawson that he wanted to move to be closer to friends and family, and that he and Ms. Maldonado were “bored” because there were not enough activities going on in the area. For these reasons, Petitioner wanted his Section 8 voucher transferred to Osceola County, under the "portability" provision of the Section 8 program. As was her normal custom, Ms. Lawson hand-wrote a memo for the file memorializing the conversation.

7. Petitioner's testimony relative to the above-referenced conversation with Ms. Lawson is not credible. There is no persuasive evidence that Petitioner's apartment flooded in February 2009, or that he requested to have his Section 8 voucher transferred to Osceola County because he was getting sicker and the doctors in Panama City did not "understand" him.

   
   

8. The same day as Petitioner’s visit, Ms. Lawson sent an inquiry, via telefax, to the housing authority in Osceola County, asking if they were “absorbing” Section 8 voucher holders. That term means that the receiving housing authority agrees to pay the voucher holder’s rent subsidy in the new locale, and that the original housing authority will have no further obligations to fund the voucher.

9. The housing authority in Osceola County replied that they were not absorbing at that time. Ms. Lawson telephoned Petitioner to inform him of Osceola’s answer.

10. In late fall of 2009, Petitioner telephoned Carol Ramer, a Section 8 Coordinator, several times. He first requested that she again ask the housing authority in Osceola County if it was absorbing, and later twice requested that she ask Orange County if it was absorbing. The replies from both authorities were that they were not absorbing. Letters mailed by Ms. Ramer to the Petitioner, to inform him of the negative replies, were returned to her as undeliverable.

11. In early January 2010, Respondent received a letter from an attorney, on behalf of Petitioner, requesting that Respondent make a reasonable accommodation for Petitioner’s handicap by agreeing to pay the voucher subsidy for him in Osceola County. The situation where the original housing authority agrees to pay for a voucher outside its jurisdiction

    
    

    is referred to in the lexicon of Section 8 as “porting” or “to port”.

12. The letter was the first time Respondent was asked to make an accommodation, or to agree to “porting” the Petitioner. The letter was also the first indication that Respondent received, indicating that Petitioner may have moved to Kissimmee in Osceola County on his own.

13. Because of the letter, Ms. Ramer went to the unit in Parker, Florida, to see if Petitioner was still residing there. She found three United Parcel Service delivery notice stickers affixed to the front door; all three were dated in mid-August 2009. She also found no signs that the unit was occupied.

14. Ms. Ramer then contacted the City of Parker water department and was told the water service to the unit had been shut off at the customer’s request on June 18, 2009. Petitioner and his cousin admitted during the hearing that they put the water “on-hold” before they left.

15. Petitioner asserts that while “passing through the streets” of Kissimmee, he found several apartments that were cheaper than the rent on his unit in Parker. However, he admitted that he did not know if those cheaper units met HUD’s standards for the Section 8 program.

16. Petitioner admitted during the hearing that he left his Section 8 unit in Parker on June 18, 2009, re-located to

    
    

    Kissimmee, and has never returned to Bay County. He also admitted that he never gave his landlord or Respondent any written notice that he intended to vacate his unit in Parker. In addition, he admitted he is familiar with the Section 8

    Family Obligation rules and signed off that he would comply with them.

17. In recent years, HUD has significantly cut back its Section 8 funding allotted to local housing authorities. At the same time, the downturn in the economy has increased unemployment in Bay County, thus requiring Respondent either to pay a greater percentage of existing Section 8 vouchers or to terminate some vouchers.

18. Increased unemployment has forced Respondent to implement cost cutting measures, including the following:

    (a) through attrition, reducing the number of families served under the voucher program from over 420 several years ago to only 326 now; (b) issuing no new vouchers; (c) adopting a policy that it would not “absorb” voucher holders moving into Bay County and would not “port” voucher holders to jurisdictions outside Bay County.

19. No one has been "ported" out or "absorbed" in three years. This policy applies across the board to all voucher holders. The only families who have moved out during this

    
    

    period and retained their vouchers are those that were “absorbed” by the receiving housing authorities.

20. Both Osceola and Orange Counties are higher cost areas than Bay County. If Respondent were to agree to “port” a voucher to either of those counties, it would have to pay more than it pays for one family in Bay County, thus reducing its ability to serve as many local residents as possible with its limited funding.

21. Petitioner presented no evidence of quantifiable damages.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See §§ 120.569, 120.57(1), and 760.35, Fla. Stat. (2010).

23. Discrimination in the sale or rental of housing is prohibited in Section 760.23, Florida Statutes, as follows in relevant part:

    760.23 Discrimination in the sale or rental of housing and other prohibited practices. –

    1. It is unlawful to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

       
       

    2. It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.

    3. It is unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, national origin, sex, handicap, familial status, or an intention to make any such preference, limitation, or discrimination.

    
    

    * * *

    
    

    1. It is unlawful to discriminate in the sale or rental of, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of:

       (a) That buyer or renter . . .

       
       

       * * *

       
       

    2. It is unlawful to discriminate against any person in the terms, condition, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of:

       (a) That buyer or renter . . .

       
       

       * * *

       
       

    3. For purposes of subsection (7) and (8), discrimination includes:

       1. A refusal to permit, at the expense of the handicapped person, reasonable modification of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises; or

          
          

       2. A refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

    
    

24. The federal Fair Housing Act (42 U.S. Code § 3604) contains virtually the same language as the Florida statute.

25. In interpreting and applying the Act, FCHR and Florida courts regularly seek guidance from federal court decisions interpreting similar provisions of federal fair housing laws. See Donald Travis and Lisa Harrell v. Anne and John Cutler, Case No. 09-3577 (DOAH November 25, 2009).

26. In cases involving a claim of housing discrimination, the complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. See

    § 760.34(5), Fla. Stat.; Schanz v. Village Apartments, 998 F. Supp. 784, 788 (S.D. Mich. 1998).

27. A prima facie showing of rental housing discrimination may be established by direct evidence, statistical evidence or circumstantial evidence. Schanz, 998 F. Supp. at 788. This case presents no direct or statistical evidence of housing discrimination based on handicap.

28. A prima facie case usually comprises circumstantial evidence of discriminatory animus, such as proof that the charged party treated persons outside of the protected class,

    
    

    who were otherwise similarly situated, more favorably than the complainant was treated. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1013 n.7 (Fla. 1st DCA 1996), aff’d, 679 So. 2d

    1183 (Fla. 1996).

    
    

29. If, however, the complainant sufficiently establishes a prima facie case, the burden then shifts to the charged party to articulate some legitimate, non–discriminatory reason for its action. If the charged party satisfies this burden, then the complainant must establish by a preponderance of the evidence that the reason asserted by the charged party is, in fact, merely a pretext for discrimination. See Massaro v. Mainlands

    Section 1 & 2 Civic Ass’n, Inc., 3 F.3d 1472, 1476 n.6 (11th

    
    

    Cir. 1993), cert. denied, 513 U.S. 808 (1994) (“Fair housing discrimination cases are subject to the three-part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”).

30. In order to prove a prima facie case of housing discrimination based on a handicap/disability, Petitioner must show the following: (a) he is handicapped/disabled as defined by the Act; (b) he was qualified, ready, willing, and able to continue occupancy; (c) he requested a reasonable accommodation in the rules, policies, procedures, or services that was

    
    

    necessary to afford Petitioner equal opportunity to use and enjoy the premises; and (d) Respondent refused to accommodate.

31. Based on Respondent's stipulation, Petitioner is handicapped as defined by the Act. Therefore, Petitioner meets the requirements of the first prong of the prima facie case.

32. As to the “qualified, ready, willing and able” prong, the evidence clearly shows Petitioner violated the terms of his lease and failed to comply with the Family Obligations by abandoning his Section 8 unit in Bay County. Additionally, he then moved to Osceola County, where he has continuously resided for over a year at the time of the hearing, without notice to either his landlord or to Respondent.

33. The Section 8 law states: “A family may not receive a voucher from a public housing agency and move to another jurisdiction under the tenant-based assistance program if the family has moved out of the assisted dwelling unit of the family in violation of a lease . . . .” 42 U.S.C. § 1437f(r)(5).

34. Respondent is specifically prohibited from “porting” Petitioner by 24 C.F.R. § 982.353(b), which states: “The initial PHA must not provide such portable assistance for a participant if the family has moved out of the assisted unit in violation of the lease ”

35. Respondent is required to terminate assistance payment under 24 C.F.R. § 982.312(b) if a family is “absent from the

    
    

    unit for a period of more than 180 consecutive calendar days in any circumstances, or for any reason.” Petitioner, by his own admission, has been absent from his unit in Parker for twice the 180-day period.

36. Under these U.S. Code and C.F.R. provisions, Petitioner is no longer “qualified” or “able” to be “ported” or to continue participating in the Section 8 program. He, therefore, fails to prove the second prong of a housing discrimination prima facie case.

37. As to the third prong, even if Petitioner were still legally able to participate in the Section 8 program, the accommodation he is requesting is not reasonable under the facts and circumstances. Due to the dire funding crisis faced by Respondent, the policy it has adopted to not “port” or “absorb” is reasonable. The policy also complies with 24 C.F.R.

    §§ 982.314(e)(1) and 982.454 which authorize a housing authority to deny permission to “port” or to terminate assistance when the authority determines it does not have sufficient funds to continue assistance. Respondent is also authorized to terminate assistance because Petitioner has violated his family obligations under the Section 8 program. See 24 C.F.R.

    § 982.552(c)(i).

    
    

38. As to the fourth prong, Respondent did not “refuse” to make the requested accommodation. Instead, the law and

    
    

    regulations cited above prohibit portability and require termination of assistance.

39. Petitioner has provided no evidence that Respondent’s reasons for not making an accommodation were a pretext for discrimination. Petitioner’s subjective belief, that he was discriminated against, without more, is insufficient to conclude that Respondent’s reasons for not making a reasonable accommodation were a pretext for discriminatory animus. Petitioner has not met his burden of showing discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief.

DONE AND ENTERED this 9th day of August, 2010, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2010.

COPIES FURNISHED:

Adalberto Diaz

2307 Boggy Creek Road, Box 38

Kissimmee, Florida 34744

William C. Henry, Esquire

Burke Blue Hutchison Walters & Smith, P.A. 16215 Panama City Beach Parkway

Panama City, Florida 32413

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 10-003164

Orders for Case No: 10-003164