STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA MCDONOUGH,

Petitioner,

vs.

OSCEOLA COUNTY HOUSING AUTHORITY,

Respondent.

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) Case No. 03-4845

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RECOMMENDED ORDER

A formal hearing was held in this matter before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on February 20, 2004, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Patricia McDonough, pro se

5121 Violet Lane

Kissimmee, Florida 34758

For Respondent: Scott Polodna, Esquire

Osceola County Housing Authority One Courthouse Square, Suite 4200 Kissimmee, Florida 34741

STATEMENT OF THE ISSUES

Whether Respondent discriminated against Petitioner, Patricia McDonough, on the basis of her race, violating Subsections 760.23(1), (2), or (4), Florida Statutes (2002).

If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Section 760.35(3)(b), Florida Statutes (2002).

PRELIMINARY STATEMENT

Petitioner, Patricia McDonough, filed a housing discrimination complaint with the Florida Commission on Human Relations (FCHR) on December 9, 2002. Pursuant to the Florida Fair Housing Act (FHA), Petitioner alleged that Respondent, Osceola County Housing Authority, unlawfully discriminated against her on the basis of her race (Caucasian) by refusing to rent her an apartment.

FCHR investigated Petitioner's allegations and its executive director issued a Determination of "No Reasonable Cause" on September 2, 2003, finding that there was no reasonable cause to believe that a discriminatory housing practice had occurred. Thereafter, Petitioner filed a Petition for Relief. On December 23, 2003, FCHR referred this matter to the Division of Administrative Hearings to conduct a formal proceeding. A formal hearing was held on February 20, 2004, in Kissimmee, Florida.

At the formal hearing, Petitioner testified in her own behalf and offered into evidence three composite exhibits, which were admitted into evidence. Respondent presented the testimony of Dawn Smith, director; Amanda Holst, housing specialist; and

Marleen Madison, housing specialist. Respondent offered into evidence one composite exhibit, which was admitted into evidence.

The hearing was recorded, but a transcript of the proceedings was not prepared. Respondent filed its Proposed Findings of Fact on February 26, 2004. Petitioner has not filed post hearing submittals as of the date of this Order.

FINDINGS OF FACT

1. Petitioner, Patricia McDonough, is a Caucasian female who, at one time, qualified for housing assistance under the Section 8 Rental Voucher (Voucher) Program and is a protected person under the FHA.

2. Respondent, Osceola County Housing Authority, is a department of the Osceola County Board of County Commissioners, a political subdivision of the State of Florida, and is the local housing authority (HA) under the Federal FHA.

3. In 1997, Petitioner participated in the Voucher program, which is administered by the United States Department of Housing and Urban Development (HUD). The Vouchers are portable, which allows a participant to move to another jurisdiction and request a transfer from one local HA to another. A portability packet of necessary paperwork is prepared by the originating HA and mailed directly to the receiving HA to facilitate the transfer and to prevent fraud.

   If the receiving HA accepts the transferred Voucher to administer, the originating HA pays the receiving HA 80 percent of the administrative fee it receives from HUD, in addition to the rental and utility assistance payments.

4. Petitioner had a valid Voucher in 1997 that was administered at the local level by the Maryland Housing Opportunity Commission located at 10400 Detrick Avenue, Kensington, Maryland 20895 (Maryland).

5. Petitioner requested Maryland to transfer her Voucher to the City of Kissimmee, Florida (Kissimmee), in 1997, which was the local HA for Osceola County, Florida, at that time. Kissimmee accepted the Maryland Voucher on August 28, 1997, and agreed to administer it on behalf of Maryland.

6. Respondent assumed responsibility for the Voucher program from Kissimmee on October 1, 2000.

7. From 1997 to the present, Kissimmee and Respondent contracted with HUD for a total of 193 Vouchers. This does not include any transferred Vouchers administered through the portability requirements of the HUD program. Kissimmee created a waiting list in 1998 that contained more than 500 names of eligible participants for the 193 Vouchers. The waiting list has not been reopened since it was created. The list was created and is administered in a nondiscriminatory and

   race-neutral manner by the HA.

8. Respondent accepts and administers transferred Vouchers and currently administers in excess of 700 such Vouchers. A transferred Voucher does not affect the 193 contracted Vouchers. A participant must be recertified annually to keep one of the

   193 Vouchers. As participants surrender one of these 193 Vouchers, a new participant is awarded the Voucher from Respondent's waiting list. As participants surrender one of the 700 transferred Vouchers, Respondent has no authority to award it to anyone, whether on the waiting list or not.

9. Petitioner was never on Respondent's waiting list, since Petitioner's Voucher was a transferred Voucher from Maryland.

10. On or about July 13, 2000, Petitioner requested Kissimmee to transfer her Voucher to the County of Fairfax, Department of Housing, Fairfax, Virginia (Virginia). Kissimmee prepared the transfer packet and mailed it to Virginia at Petitioner's request.

11. Petitioner moved from Virginia back to Osceola County in early May 2001. Petitioner testified that when she moved back to Osceola County, she brought her paperwork with her. She then requested Respondent, in a letter dated May 10, 2001, to reinstate her transfer Voucher from Virginia. Petitioner testified that she included her paperwork with the letter. However, there is no credible evidence to support her position.

12. Petitioner has not shown that she had a valid portable Voucher from another HA to transfer to Respondent when she returned from Virginia in May 2001, nor did she offer proof that she requested Virginia to mail her voucher and transfer request directly to Respondent, as HUD policy requires.

13. Respondent has never received paperwork for a transfer Voucher for Petitioner from another jurisdiction, including Maryland or Virginia, after Kissimmee transferred Petitioner's Voucher to Virginia in 2000. Respondent cannot reinstate a Voucher from another HA.

14. Respondent has policies and procedures in place to prevent racial discrimination. Respondent denied Petitioner's request based upon its policies and procedures. Respondent did not discriminate against Petitioner based upon her race.

15. Petitioner is not eligible for one of the 193 Vouchers Respondent is contracted for through HUD. Respondent does not have any Vouchers available to award to Petitioner and has not reopened the waiting list since it was created in 1998.

16. Petitioner has failed to produce any evidence that Respondent racially discriminated against her in regard to the administration of the Voucher program or failed to rent her a dwelling unit for which she was eligible.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.569, 120.57(1), and 760.35(2)(b), Florida Statutes (2003). Upon a determination that a discriminatory housing practice has occurred, the Administrative Law Judge may issue a recommended order prohibiting the discriminatory housing practice and recommending affirmative relief, including quantifiable damages.

18. FCHR is charged with the administration of the Florida Civil Rights Act of 1992, as amended, and the Florida Fair Housing Act, Chapter 760, Parts I and II, Florida Statutes (2003).

19. The Florida FHA provides in pertinent 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.

    * * *

    
    

    (4) It is unlawful to represent to any person because of race, color, national origin, sex, handicap, familial status, or religion that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. . . .

    
    

20. Petitioner, a Caucasian female, participated in the Voucher program administered by Respondent and is a protected person under the Florida FHA. The burden of proof in a race discrimination in a housing case involves the "traditional" standard set forth in McDonnell Douglas v. Green, 411 U.S. 792,

    93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973), and Texas Department of

    
    

    Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d. 207 (1981). That is, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If she demonstrates a prima

    facie case, a presumption of discrimination arises, and the burden shifts to the housing provider to articulate a legitimate, nondiscriminatory reason for its action. The burden of producing evidence is next placed on Petitioner to demonstrate that the proffered reason was pretextual. However, the ultimate burden of persuasion remains with Petitioner at all times. See St. Mary's Honor Center vs. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747 (1993).

21. In order for Petitioner to demonstrate a prima facie case under the proof standard set forth above, Petitioner must demonstrate that:

    1. She is part of a protected class.

       
       

    2. She is qualified to rent the apartment in question.

       
       

    3. She suffered a loss of housing opportunity under circumstances which lead to an inference that they based the action solely upon her race.

       
       

22. Petitioner has failed to demonstrate a prima facie case. Petitioner has demonstrated that she is part of a protected class. However, she has failed to prove that she is qualified to rent an apartment. She has not shown that one is available, nor has she shown that she has a valid Voucher that would qualify her to rent an apartment, should one become available. Therefore, no inference of race discrimination arises, and Petitioner's charge should be dismissed.

23. Assuming arguendo that Petitioner had proven a prima facie case of race discrimination, the burden to go forward with the evidence shifts to Respondent. It is required to articulate a legitimate, nondiscriminatory reason for the housing action taken. Upon such an articulation being made by Respondent, the burden to go forward with evidence to show that its action was a pretext for what really amounts to discrimination shifts back to Petitioner. Under the St. Mary's Honor Center decision, supra;

    however, the ultimate burden of persuasion remains with Petitioner at all times.

24. Petitioner's testimony and documents admitted in evidence alleged that Petitioner's application for housing was denied because Respondent lost or misplaced her paperwork and would not accept her phone calls because she was not a member of a minority. Respondent introduced credible evidence that Petitioner did not provide her paperwork to their office when she returned to Florida. Further, even if she had done so, it could not be processed since Federal regulations require that any Voucher transfer be sent directly from one local HA to another. Petitioner's proffer of evidence to prove pretext was all hearsay or conjecture. Petitioner's hearsay evidence does not fall into any of the hearsay exceptions found in Section 90.803, Florida Statutes (2003). Under Section 120.57(1)(c), Florida Statutes (2003), this hearsay evidence is not sufficient in itself to support findings of fact. Department of Environmental Protection v. Department of Management Services,

    Division of Administrative Hearings, 667 So. 2d 369, 370 (Fla. 1st DCA 1995); Department of Administration, Division of Retirement v. Porter, 591 So. 2d 1108 (Fla. 2nd DCA 1992); Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806, 809 (Fla. 1st DCA 1986). Without the hearsay evidence,

    Petitioner's evidence did not prove that Respondent's articulated reasons for denying her application were pretextual.

25. Section 760.35(3)(b), Florida Statutes (2003), provides that in the event the Administrative Law Judge determines that a discriminatory act has been committed, the Administrative Law Judge shall recommend to FCHR an order prohibiting or requiring Respondent to cease and desist its activity and shall recommend an order finding quantifiable damages.

26. There has been no evidence submitted by Petitioner of any quantifiable damages which FCHR has authority to levy in such cases. As the Court determined in Laborers' International Local 478 v. Burrough, 541 So. 2d 1160 (Fla. 1989), quantifiable damages can be authorized by an administrative agency. However, humiliation, pain and suffering, discomfort, and inconvenience are damages which are not quantifiable and may not be awarded through administrative procedures; see also Broward County v. LaRosa, 505 So. 2d 422 (Fla. 1987).

27. Consequently, had Petitioner proven discrimination, there is no relief afforded by the statute in this particular case.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the relief sought and dismissing the petition filed in this matter.

DONE AND ENTERED this 4th day of March, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Patricia McDonough 5121 Violet Lane

Kissimmee, Florida 34758

Scott Polodna, Esquire

Osceola County Housing Authority One Courthouse Square, Suite 4200 Kissimmee, Florida 34741

Cecil Howard, 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: 03-004845

Orders for Case No: 03-004845