STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On May 20, 2008, an administrative hearing in this case was held in Bradenton, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Willie A. Washington, pro se

2803 Fourth Avenue East Palmetto, Florida 34221

For Respondent: John P. Fleck, Esquire

1111 Ninth Avenue, West Bradenton, Florida 34205

STATEMENT OF THE ISSUE

The issue in this case is whether the Bradenton Housing Authority (Respondent) committed an act of housing discrimination against Willie A. Washington (Petitioner) based on his race and disability, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007).

PRELIMINARY STATEMENT

On November 14, 2007, the Petitioner filed a Housing Discrimination Complaint with the federal Department of Housing and Urban Development, which apparently referred the complaint to the Florida Commission on Human Relations (FCHR) for investigation. On March 2, 2008, the Petitioner filed a Petition for Relief against the Respondent with the FCHR, charging that the Respondent committed unlawful housing discrimination against him by denying his application for public housing assistance. The FCHR forwarded the Petition for Relief to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf and had Exhibits 1 and 2 admitted into evidence. The Respondent offered the testimony of one witness and had Exhibits 1

through 6 admitted into evidence. Respondent's Exhibits 1 through 5 each contained two parts identified as A and B. No transcript of the hearing was filed. Neither party filed proposed recommended orders.

FINDINGS OF FACT

1. The Petitioner is African-American. Although the record failed to disclose any physical or mental disability, the parties stipulated that the Petitioner is legally disabled for purposes of this proceeding.

2. In 2004, on an otherwise unidentified date, the Petitioner filed an application for public housing assistance with the Respondent. The Respondent thereafter denied the application after completing a review of the Petitioner's criminal record history. The date of the denial was not identified.

3. The Respondent's rationale for the denial was that the Petitioner did not meet the eligibility criteria established by the Respondent's governing board.

4. The evidence established that the Petitioner has a criminal history extending from 1988 to 2000, and including convictions for drug possession and sale, battery on a law enforcement officer, resisting arrest with violence, and possession of a firearm by a convicted felon.

5. The Respondent's eligibility criteria set forth numerous restrictions and provides in relevant part as follows:

   1. All families who are admitted to Public Housing must be individually determined to be eligible under the terms of the policy. In order to be determined eligible, an applicant must meet ALL of the following requirements:

      
      

      * * *

      
      

      1. The applicant family must have no record of . . . substance abuse . . . or any other history which may be reasonably expected to adversely affect:

         1. The health, safety, or welfare of other residents;

            
            

         2. The peaceful enjoyment of the neighborhood by other residents; and/or

            
            

         3. The physical environment and fiscal stability of the neighborhood.

      
      

      * * *

      
      

      G. The applicant family must have no history of criminal activity which, if continued, could adversely affect the health, safety or welfare of other residents.

      
      

      * * *

      
      

      1. The applicant family can not currently be engaged in or has been engaged [sic] during the past of any of the following activities:

         
         

         1. Drug related criminal activities.

            
            

         2. Violent criminal activities

            
            

         3. Other criminal activities that would threaten the health, safety, or right to peaceful enjoyment of the premises by other residents or HACB representatives.

            
            

         4. Conviction of drug-related criminal activity for the manufacture or production of methamphetamine on the premises of federally assisted housing.

      
      

6. Based upon review of the criteria set forth herein, the Petitioner does not meet the Respondent's eligibility criteria.

7. The Petitioner asserted that the Respondent provides housing assistance to Hispanic persons who have criminal records and further asserted that the Respondent does not perform criminal records reviews for Hispanic applicants. The Petitioner offered no evidence in support of the assertion.

8. There was no evidence that the Respondent is providing housing assistance to any person with a criminal record. The Petitioner was unable to identify any person with a criminal record to whom the Respondent is providing housing assistance.

9. There was no evidence that the Respondent does not perform criminal records reviews for Hispanic applicants. The evidence established that criminal records reviews are completed for all applicants.

10. There was no evidence that the Respondent's denial of the Petitioner's application for housing assistance was based in any manner on the Petitioner's race or disability.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 760.35(3), Fla. Stat. (2007).

12. Subsection 760.23(1), Florida Statutes (2007), provides:

    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.

    
    

13. Pursuant to Subsection 760.34(5), Florida Statutes (2007), the Petitioner has the burden of proving a violation of the statute.

14. The shifting "burden-of-proof" set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), is applicable in this case. The Petitioner has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner meets the initial burden of establishing a prima facie case, the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for its action. Assuming the Respondent does so, the burden shifts back to the Petitioner to establish that the reasons asserted by the defendant are in fact mere pretext for the discrimination. U.S. Department of Housing and Urban Development v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990); Pollitt v. Bramel, 669 F. Supp. 172, 175 (S.D. Ohio 1987).

15. Courts have uniformly held that a Petitioner establishes an initial prima facie case by proving that he is a member of a protected group, that he applied for and was

    qualified to rent or purchase certain property or housing, that he was rejected, and that the housing or rental property remained available thereafter. Selden Apts. v. U.S. Dept. of Housing & Urban Development, 785 F.2d 152, 159 (6th Cir. 1986).

16. In this case, the Petitioner has failed to establish a prima facie case of discrimination, because he failed to establish that he met the eligibility criteria for participation in the housing assistance program. To the contrary, the evidence establishes that the Petitioner does not meet the Respondent's eligibility criteria. The Petitioner failed to prove that race or disability played any role whatsoever in Respondent's decision to deny his application for housing assistance.

17. At the hearing, the Petitioner asserted that alleged approvals of his applications for assistance from other public agencies support his allegation that the reason for the Respondent's denial was discriminatory. There was no evidence as to the eligibility criteria utilized by any other agency. Further, any disparity between the Respondent's eligibility criteria and that applied by other agencies is outside the scope

of this proceeding.

RECOMMENDATION

Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order dismissing the Petitioner's Housing Discrimination Complaint.

DONE AND ENTERED this 16th day of June, 2008, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 16th day of June, 2008.

COPIES FURNISHED:

John Fleck, Esquire 1111 Ninth Avenue, West

Bradenton, Florida 34205

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Willie A. Washington 2803 Fourth Avenue East Palmetto, Florida 34221

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: 08-001219

Orders for Case No: 08-001219