vs.
Case No. 15-3109
Respondent.
This case was heard on August 6, 2015, in Tallahassee, Florida, before Suzanne Van Wyk, a designated Administrative Law Judge of the Division of Administrative Hearings.
Whether Petitioner was subject to discrimination in the rental of a dwelling, or in the terms, conditions, or privileges of rental of a dwelling, based on her gender, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.1/
On March 11, 2015, Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondent discriminated against her based on her sex. The basis for the claim of discrimination was that Respondent, Holmes County Housing Authority, revoked her housing choice voucher which had been previously-issued under a federal housing-assistance program. Petitioner claimed that, after issuance of the voucher, she had left the State of Florida involuntarily at the hands of her abuser, but wished to remain in the State of Georgia and wished to “port” her voucher to Georgia, where she felt safer closer to her family. Respondent denied Petitioner’s request to “port” her voucher, and revoked the voucher.
An investigation of the complaint was made by FCHR. On
May 7, 2015, FCHR issued its Determination of No Cause and Notice of Determination of No Cause, concluding that there was no reasonable cause to believe that a discriminatory housing practice had occurred based on Petitioner’s sex.
May 27, 2015, filed a Petition for Relief. On June 1, 2015, the petition was forwarded to the Division of Administrative Hearings for a formal hearing.
The final hearing was scheduled for August 6, 2015, in Tallahassee, Florida, and commenced as scheduled. Petitioner appeared via telephone and testified on her own behalf.
Petitioner offered no witnesses and introduced two exhibits which were admitted in evidence.
Respondent offered the testimony of Catrina Carroll, Executive Director of the Holmes County Housing Authority; and Pamela Long, Respondent’s receptionist. Respondent’s Exhibits 1 through 7 were admitted in evidence.
The final hearing was recorded by a court reporter, but the parties did not order a transcript. The parties timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.
Petitioner, Lyric Black, is an adult female currently residing in Marietta, Georgia.
Respondent, Holmes County Housing Authority, administers federal housing-assistance programs, including the HUD Section 8 Housing Choice Voucher Program. Respondent is located at 107 East Montana Avenue, Bonifay, Florida 32425.
Respondent maintains a local preference for housing assistance. The local preference is reflected in two policies. First, Respondent’s waiting list policy affords highest priority to local residents. While applicants from other states or
counties may apply for a voucher, local applicants enjoy higher priority on the waiting list. Second, Respondent’s portability policy authorizes recipients to port their voucher (i.e., use their voucher in another state or county) only if they have participated in the program for 12 months. Participation means residing in the local jurisdiction on the housing voucher.
Petitioner applied, in person, for a housing choice voucher from Respondent on May 28, 2014. On her application, Petitioner represented her residence as an undisclosed local shelter for victims of domestic violence. Petitioner represented that she had lived at the shelter for the past four months and had previously resided in Marietta, Georgia. Petitioner listed the names and ages of four minor children living with her, ranging in age from 5 months to 14 years old. Petitioner also disclosed that she was pregnant.
Petitioner received a preferential position on Respondent’s waiting list based on her residence in the area (at the local domestic violence shelter).
At some point after filing her application with Respondent, Petitioner “returned” to Georgia. The record does not clearly establish where in Georgia to which she “returned” after making application.
Respondent was unaware that Petitioner had “returned” to Georgia after applying for the housing choice voucher in
May 2014. Respondent understood Petitioner had continued to reside locally, in the domestic violence shelter or otherwise in the county, between May and October 2014.
In October 2014, Respondent notified Petitioner that Petitioner’s name had advanced on the waiting list and would shortly be at the top.
Petitioner testified that she moved to Bonifay in October 2014 “seeking to flee domestic violence.” Petitioner’s testimony on this point conflicted with her testimony on cross- examination that she moved to Bonifay in October because she received word that her name was close to the top of the waiting list for a housing voucher.
On October 29, 2014, Petitioner submitted most of the documentation required to receive her housing voucher from Respondent. Petitioner needed to submit a few outstanding documents and sign her voucher form.
On November 4, 2014, Petitioner notified Respondent that she would be delayed in submitting the last of her paperwork and coming in to sign her voucher because she was having a baby. Catrina Carroll allowed Petitioner until November 12, 2014, to come in to complete her paperwork and sign her voucher.
Petitioner gave birth to a baby girl on November 4, 2014, in Georgia.
According to Petitioner, she returned to Holmes County with the new baby and her other children “two or three days later.”
Petitioner completed her paperwork and signed her voucher at Respondent’s office on November 12, 2014.
After issuing a voucher, Respondent requires recipients to identify a local rental unit, request Respondent to inspect and approve the unit, and connect utilities and occupy the unit within 60 days. Petitioner was given the same amount of time to complete the required steps to become a participant in the voucher program.
Respondent had no contact from Petitioner between November 12, 2014, and December 30, 2014.
On December 30, 2014, Petitioner faxed a letter to Respondent titled “Portability Request.”
Petitioner’s letter read as follows:
I have experienced a recent severe domestic violence incident and seek to move with continued tenant-based assistance (proof attached). In reference to the initial 12- month residency requirement, I do understand that according to the Violence Against Women and Justice Department and Reauthorization Act 2005 (VAWA 2005) amended section 8(r) of the U.S. Housing Act to provide an exception to the prohibition against a family moving under the Portability provisions in violation of the lease.
Furthermore, Denying [sic] the move would violate VAWA, which provides that an applicant may not be denied admission or assistance, terminated from participation in or evicted because the victim is or has been a victim of domestic violence, dating violence, sexual assault or stalking.
Denying such a request to port is also inconsistent with HUD’s directive regarding other portability rules.
In closing, I respectfully request HCHA to consider this exception to the initial 12- month residency requirement and allow me to port my voucher to:
4273 Wendell Drive
Atlanta, Georgia 30336
Office: (404) 588-4950
TTY Line: (404)696-0449
Fax: (404) 472-3431
This letter also include [sic] a portability request to address an emergency situation over which I have no control.
Attached with this letter to serve as proof of domestic violence: Police Report; ER medical record of injuries; and TPO. I’ve also included previous police reports of documented domestic abuse.
Petitioner attached to the letter the following:
an ex parte family violence protective order filed December 8, 2014, by the Superior Court of Clayton County, Georgia, against C.H. (whom Petitioner identified as her ex- boyfriend);
a police report documenting an arrest of C.H. for aggravated assault on Petitioner during an incident on
December 3, 2014, at 7007 Richmond Court, Apartment C, Jonesboro, Georgia 30236;
a single-page printout from Southern Regional Medical Center Emergency Services dated December 4, 2014, documenting an evaluation and treatment of Petitioner for injuries associated with an alleged assault; and,
a letter to Petitioner from the Clayton County State Attorney dated December 12, 2014, offering the services of the Victim Family Assistance Program.
On December 30, 2014, by letter from Catrina Carroll, Respondent’s Executive Director, Respondent terminated Petitioner’s voucher and denied Petitioner’s request to port her voucher.
In the termination letter, Ms. Carroll stated, “[I]t seems that you have relocated back to Jonesboro or Marietta, GA and have therefore invalidated your preference status with our PHA. We are revoking your local status and terminating your Voucher effective immediately.”
Ms. Carroll added, “You are not being denied assistance because of VAWA criteria. Special accommodations are not given for VAWA, and our policy only gives preference for local applicants.”
Petitioner argues that she and her minor children were forcibly taken from the parking lot of the domestic violence shelter in Panama City and removed to Georgia on November 18, 2014, by her ex-boyfriend. Petitioner maintains that she was held captive in Georgia for three weeks, until December 4, 2014, when she was able to escape and call the police for assistance.
Petitioner gave a lengthy statement to police when her ex-boyfriend was arrested on December 4, 2014. The statement police report does not include anything about being forcibly
removed from Florida and held against her will in Georgia between November 18 and December 4, 2014.
Petitioner produced a document at final hearing purporting to be a copy of her bank statement showing debit and ATM transactions made in Bonifay, Florida, during the months of October and November 2014. Petitioner produced no witness to authenticate the document and the document is not self- authenticating pursuant to section 90.902, Florida Statutes (2015).
Apparently, Petitioner believes her personal family violence circumstance is sufficient grounds for an exception to Respondent’s portability policy. On cross-examination, however, Petitioner admitted her effort to obtain portability of her voucher was “a gamble.” Nevertheless, Petitioner expressed dismay that Respondent revoked her voucher.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2015).
The subject matter of this proceeding is limited to whether Respondent discriminated against Petitioner in connection with the rental of a dwelling on the basis of Petitioner’s sex, in violation of the Florida Fair Housing Act, sections 760.20 through 760.37, Florida Statutes.
The Division has no jurisdiction over Petitioner’s claim that Respondent violated provisions of the Violence Against Women and Department of Justice Reauthorization Act of 2005. The undersigned makes no findings or conclusions relative to said claim.
Florida’s Fair Housing Act makes it unlawful to discriminate against any person in the provision of rental housing because of sex. In that regard, section 760.23(1), provides as follows:
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.
It is likewise unlawful to discriminate against any person in the terms, conditions, or privileges of rental housing. In that regard, section 760.23(2), provides as follows:
(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.
In cases involving a claim of rental housing discrimination, the burden of proof is on the complainant.
§ 760.34(5), Fla. Stat.
The Florida Fair Housing Act is patterned after Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988, and discrimination covered under the Florida Fair Housing Act is the same discrimination prohibited under the Federal Fair Housing Act. Savannah Club Worship Serv. v.
Savannah Club Homeowners’ Ass’n, 456 F. Supp. 2d 1223, 1224 (S.D. Fla. 2005); see also Loren v. Sasser, 309 F.3d 1296, 1300 (11th
Cir. 2002). When “a Florida statute is modeled after a federal law on the same subject, the Florida statute will take on the same constructions as placed on its federal prototype.” Brand v.
Fla. Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); see also Milsap v. Cornerstone Residential Mgmt., 2010 U.S. Dist.
LEXIS 8031 (S.D. Fla. 2010); Dornbach v. Holley, 854 So. 2d 211,
213 (Fla. 2d DCA 2002); Fla. Dep't of Cmty. Aff. v. Bryant, 586
So. 2d 1205 (Fla. 1st DCA 1991).
A plaintiff may proceed under the Fair Housing Act under theories of either disparate impact or disparate treatment, or both. Head v. Cornerstone Residential Mgmt., 2010 U.S. Dist. LEXIS 99379 (S.D. Fla. 2010). To establish a prima facie case of disparate impact, Petitioners would have to prove a significantly adverse or disproportionate impact on a protected class of persons as a result of Respondent’s facially-neutral acts or practices. Head v. Cornerstone Residential Mgmt., supra (citing
E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1278 (11th
Cir. 2000)). To prevail on a disparate treatment in housing claim, Petitioners would have to come forward with evidence that they were treated differently than similarly-situated tenants.
Id. (citing Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008) and Hallmark Dev., Inc. v. Fulton Cnty.,
466 F.3d 1276, 1286 (11th Cir. 2006)).
In establishing that she was the subject of discrimination based upon her sex, Petitioner could either produce direct evidence of discrimination that motivated disparate treatment in the provision of services to her, or prove circumstantial evidence sufficient to allow the trier of fact to infer that discrimination was the cause of the disparate treatment. See King v. Auto, Truck, Indus. Parts & Supply,
21 F. Supp. 2d 1370, 1381 (N.D. Fla. 1998).
Petitioner presented no direct evidence of discrimination by Respondent related to its revocation of her voucher or her denial of her request to port her voucher. There were no statements or acts of any kind that could have been construed to have been directed to Petitioner’s sex.
When there is no direct evidence of discrimination, fair housing cases are subject to the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). Boykin v. Bank of Am. Corp., 162 Fed. App’x. 837, 838;
2005 U.S. App. LEXIS 28415 (11th Cir. 2005); see also Massaro v.
Mainlands Section 1 & 2 Civic Ass’n, 3 F.3d 1472, 1476 n.6 (11th Cir. 1993); Sec’y, U.S. Dep’t of Hous. & Urban Dev. on behalf of
Herron v. Blackwell, 908 F.2d 864, 870 (11th Cir. 1990); Savannah Club Worship Serv., 456 F. Supp. 2d at 1231-32.
Under the three-part test, Petitioner has the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802; Burdine, 450
U.S. at 252-253; Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006); Valenzuela v GlobeGround N. Am., LLC., 18
So. 3d 17, 22 (Fla. 3d DCA 2009). “The elements of a prima facie case are flexible and should be tailored, on a case-by-case basis, to differing factual circumstances.” Boykin, 162 F.
App’x. at 838-39, (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1123 (11th Cir. 1993)).
If Petitioner is able to demonstrate prima facie case by a preponderance of the evidence, the burden shifts to Respondent to articulate a legitimate, non-discriminatory reason for its actions. Burdine, 450 U.S. at 255; Dep’t of Corr. v.
Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). Respondent has the burden of production, not persuasion, to demonstrate to the finder of fact that its action as a rental housing provider, upon which the complaint was made, was non-discriminatory. Chandler,
582 So. 2d 1183. This burden of production is "exceedingly
light." Holifield, 115 F.3d at 1564; Turnes v. Amsouth Bank, 36
F.3d 1057, 1061 (11th Cir. 1994).
If Respondent produces evidence that the basis for its action was non-discriminatory, then Petitioner must establish that the profferred reason was not the true reason but merely a pretext for discrimination. St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 516-18 (1993). In order to satisfy this final step of the process, Petitioner must “show[] directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the profferred reason for the employment decision is not worthy of belief.” Chandler, 582 So. 2d at 1186 (citing Burdine, 450 U.S. at 252-56). Pretext can
be shown by inconsistencies and/or contradictions in testimony. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000);
Blackwell, supra; Woodward v. Fanboy, L.L.C., 298 F.3d 1261 (11th Cir. 2002). The demonstration of pretext “merges with the plaintiff’s ultimate burden of showing that the defendant intentionally discriminated against the plaintiff.” Holifield, 115 F.3d 1555, 1565 (11th Cir. 1997).
As applied to this case, the standard established in McDonnell-Douglas requires Petitioner to establish in her prima
facie case that: (1) she belongs to a protected class;
(2) Respondent was aware of it; (3) she was ready, willing, and able to participate in the housing choice voucher program; and
(4) Respondent refused to allow her to participate in the housing voucher program. See Jackson v. Comberg, Case No. 8:05-cv-1713- T-24TMAP, 2006 U.S. Dist. LEXIS 66405, *9 (M.D. Fla. 2006).
Petitioner is a female, a fact of which Respondent was aware. Thus, Petitioner satisfied the first two elements to establish a prima facie case.
However, Petitioner did not prove by a preponderance of the evidence that she was a ready, willing, and able participant in the local housing voucher program.
Petitioner was not a local resident of Holmes County, nor apparently willing to relocate to the area, in order to qualify for a local housing choice voucher. Petitioner represented to Respondent that she resided in Holmes County at an undisclosed location when she applied for the voucher in
May 2014.
The record establishes that Petitioner moved to Georgia shortly after applying for the voucher, only returned to Florida when she was informed that her name was close to the top of the voucher waiting list in October 2014, gave birth to a child in Georgia on November 4, 2014, resided in Georgia between
November 4 and December 30, 2014, and intended to remain in Georgia when she requested Respondent allow her to port her voucher to a specified address in Atlanta, Georgia, on December 30, 2014.
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), aff’d, 679 So. 2d 1183
(Fla. 1996) (citing Arnold v. Burger Queen Sys., 509 So. 2d 958 (Fla. 2d DCA 1987)).
The undersigned is not unsympathetic to Petitioner’s credible claim of domestic violence at the hands of her abuser on December 4, 2014. However, Petitioner’s circumstance has no bearing on her qualifications under the Holmes County regulations for Section 8 housing certificates.
Assuming, arguendo, Petitioner had established a prima facie case of discrimination, Respondent met its burden of production to demonstrate a legitimate non-discriminatory reason for revoking Petitioner’s voucher and denying her portability thereof.
Since Petitioner was not a resident of Holmes County, she should not have received preferential status on the housing choice voucher waiting list. Petitioner did not wish to be housed in Holmes County, Florida, thus Petitioner did not qualify to obtain a housing choice voucher from Respondent.
Because Petitioner never participated in the Holmes County Voucher Program, Petitioner did not qualify under Respondent’s program portability restrictions.
For the reasons set forth herein, Petitioner failed to prove that Respondent discriminated against her on the basis of her sex by revoking her local housing choice voucher, or denying her application to port the voucher to the State of Georgia. Petitioner failed to prove Respondent discriminated against her in the terms, conditions, or privileges of rental of a dwelling based on her sex, in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
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 filed in FCHR No. 2015H0187.
DONE AND ENTERED this 4th day of September, 2015, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2015.
1/ Except as otherwise noted herein, all references to the Florida Statutes are to the 2014 version.
Tammy S. Barton, Agency Clerk
Catrina L. Carroll
Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110
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.
