08-006178 Oliver Hill, Sr. vs. Claudette Cromartie And Tallahassee Housing Authority Status: Closed Recommended Order on Wednesday, July 8, 2009.

Summary: Accommodation for the handicapped must be both "reasonable" and necessary, without amounting to superior treatment or a "fundamental alteration" of Respondent's program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLIVER HILL, SR., )

)

Petitioner, )

)

vs. ) Case No. 08-6178

)

)

TALLAHASSEE HOUSING AUTHORITY, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

April 2, 2009, in Tallahassee, Florida, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Edward J. Grunewald, Esquire

Jamie Ito, Esquire

The North Florida Center

for Equal Justice, Inc.

2121 Delta Boulevard

Tallahassee, Florida 32303

For Respondent: Linda G. Bond, Esquire

Rumberger, Kirk & Caldwell

215 South Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent Tallahassee Housing Authority is guilty of a failure to reasonably accommodate Petitioner’s disability,

thereby violating the Florida Fair Housing Act, by

discriminating in the terms, conditions, and privileges of the

rental of a dwelling as set out in the Petition for Relief.

PRELIMINARY STATEMENT

Petitioner dual-filed a Housing Discrimination Complaint

with the Florida Commission on Human Relations (FCHR) and the

United States Department of Housing and Urban Development (HUD).

HUD referred the timely-filed complaint to FCHR on or about

August 6, 2008. On October 7, 2008, FCHR entered a

Determination: No Cause, which was mailed to Petitioner on or

about October 10, 2008. On or about November 10, 2008,

Petitioner filed a timely Petition for Relief, and the cause,

pursuant to Chapter 760, Florida Statutes, was referred to the

Division of Administrative Hearings (DOAH) on or about

December 12, 2008.

DOAH’s case file reflects all pleadings, notices, and

orders intervening before the final evidentiary hearing on

April 2, 2009.

Although required by law and custom to provide a means of

preserving the record herein, FCHR abrogated that duty and

obligation by failing to provide tape, CD, or video recording of

the April 2, 2009, disputed-fact hearing, and by failing to

provide a court reporter. The parties hired a court reporter,

and a Transcript was produced.

At hearing, Petitioner presented the oral testimony of

Angela Hill and testified on his own behalf. Petitioner had

Exhibits P-1 through P-25, P-27 through P-35, and P-39 through

P-44, admitted in evidence. Exhibit P-22, is the deposition of

Dr. Mark Cuffe. Respondent presented the oral testimony of

Claudette Cromartie and had Exhibits R-1 through R-33 admitted

in evidence.

At hearing, the parties stipulated that Claudette Cromartie

was a party only in her official capacity as Executive Director

of the Tallahassee Housing Authority (THA), and not in her

throughout this Recommended Order to refer only to THA, and the

style of this cause has been amended as set out above.

A two-volume Transcript was filed on April 21, 2009. By an

agreed Motion, the parties extended their oral stipulation for

the filing date of their Proposed Recommended Orders to May 12,

2009, and the undersigned concurred by telephone, without entry

of a written order. Petitioner’s Proposed Recommended Order was

timely-filed on May 12, 2009. Respondent’s Proposed Recommended

Order was filed May 13, 2009. Petitioner did not move to strike

Respondent’s late proposal, so both proposals have been

considered simultaneously in preparation of this Recommended

Order.

The parties’ prehearing stipulations, Section E: 1-44, of

the Joint [Prehearing] Stipulation have been utilized as agreed-

to by the parties (TR-12-13), with some minor adjustments for

grammar, form, and clarity, and to avoid giving specific street

addresses.

FINDINGS OF FACT

1. Petitioner is a disabled person who collects a monthly

disability payment. (Prehearing Stipulation 1.) He is 66 years

old and suffers multiple disabilities, including cerebral palsy,

severe arthritis, a reading disability, a speech impediment, and

nerve damage and numbness in his hands.

2. Petitioner’s physicians have informed THA that

Petitioner is a disabled person under the definition used in the

Fair Housing Act: a person with a physical or mental impairment

which substantially limits one or more major life activities.

(Prehearing Stipulation 2.)

3. Petitioner’s physicians have informed THA that

Petitioner requires a live-in aide to assist him with his daily

activities. (Prehearing Stipulation 3.)

4. THA provided Petitioner with a unit to accommodate a

live-in aide, in accordance with HUD guidelines. (Prehearing

Stipulation 4.)

5. Respondent THA is a quasi-governmental agency which

provides housing assistance for low, to very low-moderate income

individuals and families. These services are provided through

public housing and through the HUD Section 8 Housing Choice

Voucher Program. All of THA’s policies and procedures are

monitored and audited by HUD and are required to be consistent

with HUD policies.

6. At any and all times material, THA has had

approximately 1500 people on a waiting list for public housing,

and approximately 3,000 people on a waiting list for Section 8

housing. Accordingly, it is necessary for THA to be a “good

steward” of its resources, so that it can provide shelter for as

many low income families as possible.

7. To this end, THA almost universally apportions bedrooms

as follows: one bedroom for the head of a household, to be

shared with a spouse if applicable; one bedroom for all female

children; and one bedroom for all male children. A family of

two adults and five dependents would still, almost certainly, be

provided only a three-bedroom house or apartment. However,

THA’s Public Housing Occupancy Guidebook, and various other

HUD/THA documents recognize that a disabled person’s live-in

aide may require a separate bedroom. Chapter 55 of the

Guidebook also recognizes that a person with a disability may

have a large and bulky apparatus related to the disability which

requires an extra bedroom if that is the only location where the

apparatus can be stored.

8. THA has two major functions. The first is to implement

HUD policy at the local level, owning the buildings in which

eligible families live for public housing. The second is a

Section 8 Housing Choice Voucher Program, which subsidizes

families to rent from private landlords in the community. Part

of THA’s Section 8 thrust includes a Section 8 Home Ownership

Program, whereby THA provides a qualified person with a voucher

which subsidizes that person’s mortgage with a private lender

for up to 15 years, unless the qualified person is elderly or

handicapped, in which case, the voucher extends up to 30 years.

THA administers the Family Self-Sufficiency Program for both

public housing and Section 8.

9. Briefly, the way the voucher system for home purchase

works is as follows: the low-income applicant must qualify for

a mortgage with an independent third-party lender, such as a

bank. The lender unilaterally determines whether to grant the

applicant a mortgage, understanding that 30 percent of the

mortgage will be paid by the applicant’s income and 70 percent

of the mortgage will be paid by the Housing Voucher Program, but

the independent lender must agree to accept the voucher from the

applicant. Once the independent lender agrees to accept the

voucher, THA gives the qualified applicant the voucher, which

the applicant passes on to the independent lender.

10. THA does not provide first mortgages to finance home

purchases. (Prehearing Stipulation 15.) However, sometime

prior to 2008, THA’s Board authorized a $25,000, "soft" second

mortgage system. THA’s soft second mortgage system only comes

into play after a first mortgage is guaranteed by an independent

lender. From the institution of this program, THA’s Board of

Commissioners has had a firm policy not to sell any of its

property below the independent appraisal value.

11. The Petition for Relief alleges only that Respondent

failed to accommodate Petitioner’s disability by requiring that

he move into a two-bedroom apartment, rather than allowing him

to remain in a three-bedroom home he had occupied for six years.

Thereby, Petitioner sought a finding of disability

discrimination, prohibition of the discriminatory practice,

relocation of Petitioner to a specific three-bedroom house on

Connector Drive, Tallahassee, Florida, which he had occupied for

six years, and reimbursement for all moving expenses, attorney’s

fees, and costs.

12. Petitioner’s Proposed Recommended Order additionally

asserts that discrimination occurred by Respondent’s failing to

provide Petitioner with a requested grievance hearing to which

he was entitled. The assertion that Respondent failed to follow

its own grievance procedure and the evidence admitted which was

directed to the grievance issue was not a surprise to Respondent

( See Pre-Hearing Stipulation.) Also, the assertion that

Respondent failed to follow its own grievance procedure does not

alter the basic category of “disability” discrimination alleged

initially.

13. Petitioner has resided in pubic housing through THA

since 1971. He has long been an activist with an occupants’

rights group. At some point, he served on THA’s Board. For

about 30 years, he lived in a three-bedroom unit that was part

of the Orange Avenue Apartments. For several years, his wife

and three children (both genders) resided with him, but the last

two years he lived alone in that three-bedroom unit.

14. In 2002, THA obtained a letter from Dr. Mark Wheeler

dated September 30, 2002, stating:

To whom it may concern:

Mr. Hill has multiple chronic medical

conditions in which he requires the aid of a

caregiver for some daily activities

(buttoning shirt, etc.) Please give him due

consideration and allowances. (Prehearing

Stipulation 29.)

15. In 2002, Petitioner applied for, and received, a HUD

Section 8 voucher for home ownership for a disabled person to

use through the home ownership program administered by THA.

( See Finding of Fact 9.) Of the houses shown him by THA,

Petitioner selected a three-bedroom house on Connector Drive.

16. Petitioner moved from public housing at Orange Avenue

and into the home on Connector Drive in 2002, in anticipation of

purchasing the home on Connector Drive. (Prehearing

Stipulations 14 and 30 synopsized and merged.)

17. The house at Connector Drive is a scattered-site,

single family home owned by THA. (Prehearing Stipulation 12.)

18. The base area of the house at Connector Drive is 1102

square feet, and the area of the garage is 464 square feet.

(Prehearing Stipulation 16.)

19. The house at Connector Drive had features in place to

accommodate Petitioner’s disability. (Prehearing Stipulation

17.)

20. The house at Connector Drive has three bedrooms and a

garage. (Prehearing Stipulation 13.)

21. The house at Connector Drive had one bathroom adjacent

to the master bedroom and a second bathroom on the other side of

the house with the other two bedrooms. This layout provided

some privacy for a live-in aide.

22. For awhile, Petitioner lived alone in the three-

bedroom house on Connector Drive. He was assisted by a fiancée

who did not live with him.

23. Petitioner participated in workshops put on by THA to

qualify to purchase a home, but he was unable to present THA

with a lender which would finance his purchase of the Connector

Drive property at the required price.

24. In 2002, there were programs available that would have

allowed Petitioner to purchase another home through Bethel

Community Development Corporation for less than the

independently appraised value of the Connector Drive property,

or to build a two-bedroom house, but Petitioner wanted to

purchase the Connector Drive three-bedroom house.

25. In 2002, at a meeting in connection with purchasing

the Connector Drive home, Ms. Cromartie, Executive Director of

THA, inquired of Petitioner why he did not just rent the

Connector Drive home from THA for the rest of his life and not

bother with home ownership. Petitioner optimistically took this

inquiry as a guarantee that THA could/would never move him from

that location.

26. However, at all times material, Petitioner’s standard

lease agreement with THA provided, in pertinent part, as

follows:

11. REDETERMINATION OF RENT, DWELLING SIZE

AND ELIGIBILITY

11 A. The status of each resident’s family

eligibility is to be redetermined at least

once a year, but also at interim periods if

requested by THA in accordance with any

information received by THA which may

reasonably affect the determination of rent

or household composition for Resident.

Resident agrees to furnish to THA at least

once a year, or at an interim

redetermination upon request by THA,

accurate information as to household income,

and assets, number of persons residing in

the household and employment verification

for THA’s use in determining whether

Resident’s rent should be adjusted and

whether the size of the dwelling is still

appropriate for Resident’s needs. . . .

* * *

11.G. Should there be a determination by THA

that the household composition no longer

conforms to THA’s “Admission Policy” in

effect at that time, Resident agrees to

transfer to an appropriate size dwelling,

whether in Resident’s complex or elsewhere

on THA’s property. Resident shall be

notified of any transfer to another dwelling

as a result of the annual redetermination,

or interim, [sic] shall state that Resident

may ask for an explanation stating the

specific grounds of the THA determination

and that if Resident does not agree with the

determination, Resident may request a

grievance hearing concerning the

determination in accordance with THA’s

grievance procedure. Resident shall have at

least six (6) days following the notice to

transfer to the new dwelling. Prior to

transfer, Resident agrees to pay all

outstanding charges due THA. Resident

security deposit may be transferred to the

new dwelling provided THA does not claim all

or part of the security deposit as provided

herein. Resident shall pay all or any part

of the security deposit for the original

dwelling, or any balance remaining after any

claims are made by THA. Resident shall be

responsible for all expenses incurred in the

transfer. Resident agrees to execute a new

Dwelling Lease Agreement in advance of the

transfer.

12. RESIDENT OBLIGATIONS

Resident agrees to be obligated as follows:

* * *

Z. To transfer to an appropriate size

dwelling upon notification from THA.

27. Also, at all times material, Section 5.5 of the Public

Housing Occupancy Guidebook also recognized that:

A very common failing in the area of

Occupancy Standards occurs when PHAs permit

long-time residents to remain in units that

are significantly too large for their

families even though there is demand for the

size of unit in which the family is over

housed. The only situations in which a

family should occupy a unit with more

bedrooms than family members would be:

* As a reasonable accommodation to a person

with a disability (e.g., a resident with a

disability has large and bulky apparatus

related to the disability in the apartment

and an extra bedroom is the only location

where it can reasonably be stored); or

*Because there is currently no demand for

the unit size the family occupies (although

in this situation the family must understand

that they would be required to transfer if a

family with the number of persons requiring

the unit size qualifies for housing); or

*A resident has a Live-in-Aide who needs an

extra bedroom.

28. In 2004, Petitioner had neck surgery and was told he

would need a live-in aide.

29. In 2004, Petitioner’s daughter, Angela, moved from

Atlanta, Georgia, to assist him. She brought with her a “Total

Gym” resistance exercise machine. This is a piece of exercise

equipment that testimony shows measures about seven-and-a-half

feet long, three feet wide, and 42 inches tall, when opened and

laid out on the floor for use, and weighs over 50 pounds. By

the photographs in evidence, the undersigned estimates that it

occupies at most a two-foot-by-two-foot square of floor space

and stands about five feet tall when folded-up and stored

vertically.

30. Since 2004, Petitioner’s daughter has resided with

Petitioner as his live-in aide and has assisted him with

dressing himself, household cleaning, doing his exercises,

grocery shopping, reading and writing, and going to doctors’

appointments and other necessary activities. (Amplified

Prehearing Stipulation 5.)

31. Petitioner also has computer equipment that assists

him with reading. (Prehearing Stipulation 6.)

32. Angela Hill works at a full-time position at FedEx,

earning more than $14.00 per hour, but her income is not

included in determining Petitioner’s housing subsidy.

(Prehearing Stipulation 7.) Under THA/HUD guidelines, her

income is not calculated against Petitioner for public housing,

but her presence as a live-in aide is calculated in his favor

for assigning more space as a larger family unit. ( See Finding

of Fact 7.)

33. Prior to his 2004 surgery and his daughter’s arrival,

Petitioner had exercised at Florida A & M University and then

used an incline bench, weights, and springs at home.

34. Petitioner exercised using the “Total Gym” resistance

machine, a sit-up bench, free weights and wall mounted springs

when he lived on Connector Drive. (Prehearing Stipulation 8.)

He also had another incline exercise bench.

35. Petitioner required assistance with these exercises.

(Prehearing Stipulation 9.)

36. The area required for Petitioner to store and use his

equipment, including the “Total Gym” resistance machine, with

assistance from another individual, is about the size of a 12-

foot-by-12-foot room, or 144 square feet. (Prehearing

Stipulation 11.)

37. On Connector Drive, Petitioner stored his exercise

equipment in the third bedroom or the garage.

38. No medical physician prescribed the Total Gym for

Petitioner’s use. He and his daughter just tried it one day,

and they decided it was easier and less stressful for him to use

than free weights because once his daughter places his arms on

its bar, Petitioner can use the bar to move his arms via his

oppositional body weight on the glider portion below the bar.

39. When Petitioner was in rehabilitation for a 2007

surgery, he received therapy from occupational and

rehabilitation therapists, both in their facility and in his

home on Connector Drive. His daughter told them that Petitioner

used a Total Gym to work out. Apparently, the therapists were

enthusiastic about the Total Gym, but did not advise that the

Total Gym was necessary to exercise Petitioner’s upper body.

They told the daughter to use light weights and assist

Petitioner with arm extensions.

40. On Connector Drive, Petitioner also walked for

exercise, rode a bicycle on a stand in the garage, and drove a

car.

41. Petitioner lived on Connector Drive from 2002 to 2008.

From 2004 to 2008, his daughter lived with him, assisting him.

His situation has been annually reviewed and recertified for

eligibility by THA throughout that period of time.

42. THA has provisions in its leases for right-sizing

residents so that families live in a housing property

appropriate for their family size. ( See Finding of Fact 26.)

“Over-housed” means the unit is too large for the family.

“Under-housed” means the unit is not large enough for the

family.

43. In September 2007, Respondent realized that a number

of residents, including Petitioner, were not living in

appropriate size units.

44. On September 19, 2007, THA notified all residents that

appropriate bedroom size would be determined at annual

recertification review. (Prehearing Stipulation 20.)

45. Two scattered-site families were reviewed for being

under-housed, and eight scattered-site families, including

Petitioner, were reviewed for being over-housed. Of the four

families who were moved, including Petitioner, three were

moved was apparently neither disabled nor elderly. (R-3 and

R-23.) Disabled and non-disabled lessees were relocated from

other categories of housing as well.

46. Petitioner attended an annual recertification

interview on January 17, 2008. (Prehearing Stipulation 21.) At

that time, he was told he needed to get new medical letters

documenting his disability and need for a live-in aide.

47. Respondent determined Petitioner should be relocated

to a two-bedroom unit at the apartment complex of his choice.

(Prehearing Stipulation 22.)

48. Petitioner was offered a two-bedroom apartment and

selected one at Brighton Road in the old Orange Avenue location.

(Amplified Prehearing Stipulation 23.)

49. Petitioner was notified on March 24, April 10, and

May 5, 2008, that he would be moved to the two-bedroom unit at

Orange Avenue due to a determination that he was “over-housed.”

(Prehearing Stipulation 24.)

50. Petitioner made a request for an accommodation in

letters to Ms. Cromartie, dated March 24, April 16, and

April 21, 2008, asking that he not be moved from Connector

Drive. (Prehearing Stipulation 25.)

51. Ms. Cromartie acknowledged that THA’s and HUD’s rules

and regulations allow THA to make an accommodation by waiving or

adjusting a rule or qualification for a disabled person. ( See

Finding of Fact 7.)

52. The Public Housing Occupancy Guidebook provides in

pertinent part:

. . . A “reasonable accommodation" is a

change, exception, or adjustment to a rule,

policy, practice or service that may be

necessary for a person with a disability to

have an equal opportunity to use and enjoy a

dwelling, including public and common use

spaces. Since rules, policies, practices,

and services may have a different effect on

persons with disabilities than they have on

individuals without disabilities, treating

persons with disabilities exactly the same

as others will sometimes deny them an equal

opportunity to use and enjoy a dwelling. . .

.

To show that a requested accommodation may

be necessary, there should be an

identifiable relationship, or nexus, between

the requested accommodation and the

individual’s disability. An accommodation

will not be considered reasonable if it

constitutes a fundamental alteration of the

provider’s program, or constitutes an undue

financial burden.

53. The Reasonable Accommodation Verification Form THA

sends to physicians to verify whether an accommodation proposed

by a resident is medically necessary contains the following

language:

SAHA is required by law to provide

reasonable accommodations to disabled

applicants/residents that will provide them

with equal opportunity to use and enjoy our

housing programs, their unit and/or common

areas. SAHA does not provide reasonable

accommodations when the request is a matter

of convenience or preference only.

54. Petitioner asked Ms. Cromartie that he be considered

for the home ownership program through THA in letters dated

March 24, April 16, and April 21, 2008. (Prehearing Stipulation

31.)

55. Petitioner made requests for a grievance hearing in

writing on March 24, and April 21, 2008, and in person on

April 16, 2008. (Amplified Prehearing Stipulation 37.)

56. THA has a written grievance policy. (Prehearing

Stipulation 35.)

57. Section 11.G. in Petitioner’s lease agreement states,

in regards to transfers, that “If Resident does not agree with

the determination, Resident may request a grievance hearing

concerning the determination in accordance with THA’s grievance

procedure. (Prehearing Stipulation 36.) ( See Finding of Fact

26.)

58. Petitioner’s lease also specifically provides:

22. GRIEVANCE/APPEAL PROCEDURE

All grievances, disputes and appeals arising

under this Agreement, including but not

limited to the obligation of resident or

THA’s as approved or established by HUD,

shall be resolved in accordance with THA

grievance procedure, as approved or

established by HUD, in effect at that time,

posted in the Property Management Office or

resident’s complex. If there is not a

Property Management Office the Central

Office of THA shall serve as designated

location. Such grievance procedure is

incorporated herein, either by attachment or

reference. THA reserves the right to

exclude the grievance procedure under

circumstances outlines [sic.] in this

Agreement and applicable provisions of

Federal laws and regulations.

59. Section III (B) (1) and (2) of THA’s Grievance

Procedure permits management to not apply the grievance

procedure only in cases of a termination or eviction involving

criminal activity or drugs.

60. Ms. Cromartie testified that she interpreted

Petitioner’s complaints and correspondence to be a request to be

permitted to purchase the Connector Drive unit via the voucher

system or to purchase it at a price which was no higher than the

amount THA had paid for the house in 1997.

61. Petitioner’s letters also could legitimately be

interpreted to be requests to be allowed to remain in the

Connector Drive house under the same terms as before, at least

until his grievance was resolved, or until THA increased his

voucher for purchase, or until THA sold him the house at a price

he could afford. In his April 16, 2008, letter, Petitioner

mentioned he needed space to exercise, but one could not glean

therefrom that Petitioner was asking for space to use or store

specific exercise equipment that could not be stored in a two-

bedroom unit. Clearly, the accommodation Petitioner was seeking

was not just to be placed in any three-bedroom unit so that he

could do his exercises. He wanted to be “accommodated” for his

handicap by being permitted to purchase or otherwise remain in

the particular three-bedroom house on Connector Drive.

62. Ms. Cromartie replied to Petitioner’s March 24, 2008,

letter on March 26, 2008, but did not address his request for a

grievance hearing. (Prehearing Stipulation 38.) As of

March 26, 2008, Petitioner was told the Brighton Road/Orange

Avenue unit would only be held for him for 45 days, which would

have been May 10, 2008.

63. On April 1, 2008, Linda Brown, Petitioner’s site

manager, sent an e-mail to Ms. Cromartie stating in part, “he

[Petitioner] is upset because you have not responded to him

concerning his grievance request.” (Prehearing Stipulation 40.)

64. On April 1, 2008, Ms. Cromartie sent an e-mail to

Linda Brown, agreeing to provide Petitioner, in Petitioner’s new

Brighton Road/Orange Avenue location, with the Americans with

Disabilities Act (ADA) toilet he had requested and with other

non-disability-related requests he had made and explained the

situation regarding Petitioner’s purchase of a home. She also

stated:

If Mr. Hill refuses to be relocated, Joan

will need to provide him with a non-

compliance notice, then serve him with

eviction papers should it go that far.

(Amplified Prehearing Stipulation 41.)

65. On April 13, 2009, Linda Brown sent an e-mail to

Ms. Cromartie, explaining Petitioner’s dissatisfaction with the

changes made and stating, in part, “His main complaint again was

that he has not been granted a grievance hearing.” (Prehearing

Stipulation 42.)

66. Ms. Cromartie wrote Petitioner on April 16, 2008, and

did not respond to his request for a grievance hearing.

(Prehearing Stipulation 39.)

67. On April 16, 2008, Ms. Cromartie advised Petitioner

that a lending institution, not THA, would have to determine

whether Petitioner could qualify for a mortgage to purchase the

home on Connector Drive. (Prehearing Stipulation 32.) She also

gave him extensive information about financing to buy through

THA’s system.

68. Petitioner has never come to THA or Ms. Cromartie with

a qualified lender who would accept a voucher from THA. He did

not qualify to buy the home he wanted. 1/

69. Although through the previous years and in 2008,

Petitioner was unsuccessful in purchasing the Connector Drive

house, his situation concerning buying a public housing home is

not necessarily unusual or related to his disability. Of 36

homes made available by THA at the same time as the Connector

House initially became available for purchase in 1997, only

three low/low-moderate income applicants have been successful in

qualifying and purchasing one of those 36 homes.

70. Respondent had received a letter from Dr. Claudia

Perdei, dated April 10, 2008, documenting Petitioner’s need for

a live-in aide.

71. THA had received correspondence from Dr. Mark Cuffe

dated April 16, 2008, stating that Petitioner “requires a

facility where he can exercise to keep in shape so that he can

avoid falling or a room big enough for him to keep his own

exercise equipment.” (Prehearing Stipulation 26.)

72. THA [Ms. Cromartie] sent a letter to Dr. Cuffe, dated

April 23, 2008, asking for clarification on Petitioner’s need

for a caregiver and “the type of room or facility required for

Mr. Hill’s exercise equipment.” (Prehearing Stipulation 27.)

73. THA received correspondence from Dr. Cuffe, dated

April 25, 2008, stating that Petitioner’s exercise equipment

could be “kept in his room, if necessary.” (Prehearing

Stipulation 28.)

74. Therein, Dr. Cuffe specifically opined:

Mr. Hill has multiple neurological problems

that require assistance indefinitely. He

requires an area that he can exercise and

keep in shape. He can use a treadmill, a

stationary bicycle, walking, 5-10 lb. hand

held weights. He needs assistance with

these exercises. This equipment can be kept

in his room if necessary.

75. At this time, Petitioner had not seen Dr. Cuffe since

November 2007. (Prehearing Stipulation 10.)

76. Petitioner signed the lease for the Brighton Road

house on May 12, 2008, because he feared being evicted and

having no place to live if he did not. ( See Findings of Fact 62

and 64.) This is the date Petitioner claims discrimination took

place.

77. Ms. Cromartie testified that Petitioner did not get

his grievance hearing because she assumed he no longer wanted a

hearing when he signed-off on his new unit at Brighton Road.

Given the chronology of the parties’ exchanges and the time

frame for grievance hearings, as established by the lease, her

testimony on this issue is somewhat disingenuous, but it is not

clearly linked in any cause and effect or retaliatory sense to

Petitioner's disability. After all, Petitioner had not brought

her a willing and able lender, and the on-going dialogue with

Petitioner about the accommodations he wanted in the Brighton

Road unit (ADA toilet seat, payment of moving expenses, etc.)

had largely been granted before Petitioner moved in. ( See

Findings of Fact 60, 62, and 64.)

78. Petitioner never waived his right to a grievance

hearing in writing. (Prehearing Stipulation 44.)

79. Petitioner never got a grievance hearing. (Prehearing

Stipulation 43.)

80. Petitioner was involuntarily transferred to the

Brighton Road unit at Orange Avenue in May 2008, when his lease

at Connector Drive terminated, and following a determination

that he did not qualify for a three-bedroom unit. (Amplified

Prehearing Stipulation 33.)

81. THA paid all Petitioner’s relocation expenses.

(Amplified Prehearing Stipulation 34.)

82. The housing unit at Brighton Road is a two-family

attached unit that is part of the Orange Avenue Complex owned by

THA. (Prehearing Stipulation 18.)

83. The heated area of the apartment at Brighton Road is

671 square feet, with no garage. (Prehearing Stipulation 19.)

84. Approximately two months prior to hearing, but well

after any time material to Petitioner’s move from Connector

Drive to Brighton Road or the filing of his complaint herein,

Petitioner’s daughter discussed Petitioner’s exercises with a

physical therapist. The physical therapist recommended exercise

for Petitioner’s upper body. The daughter is able to assist

Petitioner at the Brighton Road address in performing all the

exercises recommended.

85. At the Brighton Road unit, Petitioner can do leg

lifts, arm curls, and arm extensions with light weights on a

chair in the living room or seated on his bed. In so doing, his

daughter lifts his arms over his head.

86. At Brighton Road, Petitioner has no garage in which to

put his bicycle up on a stand, but he can ride a bicycle. He is

still able to go for walks. He continues to drive a car.

87. When Petitioner moved to Brighton Road, he gave away

his two weight benches. He retained his free weights, his

bicycle, and his daughter’s Total Gym. His free weights are now

in his bedroom in the new unit (P-44), and the Total Gym is

folded and stored vertically in the kitchen.

88. At Connector Drive, Petitioner’s master bedroom was 15

feet-two inches by 11 feet-one inch. At Brighton Road, the

master bedroom is 12 feet by 11 feet.

89. At Connector Drive, the daughter’s/aide’s room was 13

feet-five inches by 11 feet-two inches. At Brighton Road, it is

12 feet by eight feet.

90. At Connector Drive, the dining room/kitchen was 17

feet-two inches by nine feet-five inches. At Brighton Road, the

kitchen/dining area is 12 feet by 12 feet-six inches.

91. At Connector Drive, the living room was 13 feet-three

inches by 14 feet-two inches. At Brighton Road, there is a five

foot-six inch by four foot-six inch hall, combined with a living

room that is 12 feet-six inches by 13 feet. (The 13 feet

includes the four feet-six inch hall width.)

92. Throughout the Brighton Road house, Petitioner and his

daughter/aide have the same amount of furniture as before. They

share the single bathroom. They want a second bathroom for

greater privacy.

93. Due to his furniture and the size and configuration of

the Brighton Road unit’s rooms, it is unlikely that anyone would

want to leave the Total Gym continuously set up for use there.

The daughter stated she can open and set up the Total Gym by

herself, but she would not want to do it daily. Petitioner

wants to have a third bedroom so he can leave the Total Gym set

up for ease of use at any time he chooses.

94. Petitioner cannot open the Total Gym by himself, but

he cannot use the Total Gym entirely by himself, anyway. ( See

Finding of Fact 38.) He and his daughter claim the Total Gym is

safer for him to use than free weights, because he cannot drop

the Total Gym weights like he can free weights, but Petitioner

cannot exercise either with the Total Gym or with the free

weights without his daughter’s/aide’s help.

95. Petitioner and his daughter claim that Petitioner

cannot use the Total Gym anywhere in the new apartment.

96. Dr. Cuffe is a neurosurgeon who has been treating

Petitioner since 1993. He has performed surgery on Petitioner

many times, most recently in 2004, for cervical fusion to

address tingling and numbness in Petitioner’s arms and hands.

97. When deposed the month before final hearing for

purposes of this litigation, Dr. Cuffe felt that Petitioner was

“as good as he is going to get,” physically. He deferred to any

physical therapist, occupational therapist, lifestyle expert, or

ergonomic specialist as far as exercise for Petitioner is

concerned. He stated he was not the one to consult on that

issue, thereby suggesting that his April 16, and April 25, 2008,

correspondence concerning Petitioner’s exercise needs was not

intended to prescribe exercise. ( See Findings of Fact 70, 72,

and 73.)

98. No physical therapist, occupational therapist,

lifestyle expert, or ergonomic specialist has offered an opinion

concerning Petitioner and exercise.

99. No physician has said Petitioner has had a decline of

physical condition since moving to the Brighton Road Address but

Petitioner and his daughter feel he has. Petitioner and his

daughter believe that he has declined, but Petitioner conceded

any decline could relate back to the recovery period from

surgery in 2007.

CONCLUSIONS OF LAW

100. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1), and 760.20-760.37,

Florida Statutes (2008).

101. Section 760.23 (8), Florida Statutes (2007),

provides:

It is unlawful to discriminate against any

person in the terms, conditions, or

privileges of the sale or rental 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.

102. Herein, it is alleged that Respondent has

discriminated against Petitioner by refusing “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.” See § 760.23(9)(b).

Accord , 42 U.S.C. § 3604 (3) (B).

103. Florida’s Fair Housing Act tracks the Federal Fair

Housing Act, which in turn was adopted from Section 504, of the

Rehabilitation Act, 29 U.S.C. Section 791, and is closely akin

to other similar anti-discriminatory laws, such as the Americans

With Disabilities Act. Therefore, related federal cases derived

from all similar federal Acts are instructive as to how

Florida’s law is to be interpreted. Hawn v. Shoreline Phase I

Condo. Ass’n. , 2009 U.S. Dist LEXIS 24846; Schwarz v. City of

Treasure Island , 544 F. 3d 1201 (11th Cir. 2008); Loren v.

Sasser, 309 F. 3d 1296 (11th Cir. 2002); Dorbach v. Holley , 854

So. 2d 211 (Fla. 2d DCA 2002.)

104. “Whether a requested accommodation is required by law

is ‘highly fact-specific, requiring case-by-case

determination.’” Loren v. Sasser , supra , quoting Groner v.

Golden Gate Gardens Apartments , 250 F.3d 1039, 1044 (6th Cir.

2001). Accordingly, great care has been taken to lay out all

relevant facts which could impinge on a decision in this case.

105. In order to prevail herein, Petitioner must establish

(1) that he is disabled or handicapped within the meaning of the

statute, and that Respondent knew or should have known of that

fact; (2) that an accommodation was necessary to afford him

equal opportunity to use and enjoy the dwelling; (3) that such

an accommodation is reasonable; and (4) that Respondent refused

to make the requested accommodation. See generally Schwarz v.

City of Treasure Island , supra . See also United States v.

California Mobile Home Park Management Co. , 107 F.3d 1374, 1380

(9th Cir. 1997); Stassis v. Ocean Summit Ass’n, Inc. , 2008 U.S.

Dist. LEXIS 31856 (S.D. Fla. 2008); Jacobs v. Concord Village

Condominium X Ass’n, Inc. , 2004 U. S. Dist. LEXIS 4876, 2004 WL

741384, (S.D. Fla.) 17 Fla. Weekly Fed. D. 347.

106. Herein, Petitioner is acknowledged as disabled or

handicapped under the applicable statute. Respondent knew this,

and Respondent refused to make either of two requested

accommodations, to sell Petitioner the house he wanted at below

cost and contrary to all of Respondent’s rules, regulations, and

policies or to allow him to remain in the house he wanted when

there were families larger than his which needed the space. The

only controversy at all is whether or not Petitioner’s requested

accommodations were “reasonable.”

107. Petitioner bears the burden of showing that the

requested accommodations are “reasonable.” In order for a

requested accommodation to be reasonable, it must first be shown

to be necessary to afford Petitioner an equal opportunity to use

and enjoy a dwelling. See § 760.23 (9) (b), Fla. Stat.; 42

U.S.C. § 3604 (f) (3) (B), and Schwarz , supra.

108. Assessments of the Federal Acts hold that a

reasonable accommodation is one that is necessary to afford the

handicapped individual an equal opportunity to use and enjoy a

dwelling ( accord , Section 760.23(9)(b), Florida Statutes) and

that the requested accommodation does not constitute a

fundamental alteration of the nature of the provider’s program

or constitute an administrative or financial burden on the

provider. Schwarz , supra. ; Smith & Lee Assocs., Inc. v. City of

Taylor , 102 F.3d 781, 795-96 (6th Cir. 1996).

109. Pursuant to the Rehabilitation Act, an

“[a]ccommodation is not reasonable if it either [1] imposes

undue financial and administrative burdens on a grantee or [2]

requires a fundamental alteration in the nature of the program.”

School Board of Nassau County v. Arline , 480 U.S. 273, 288 n.

17, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987) (quotation marks,

alteration, and citations omitted); Harris v. Thigpen , 941 F.2d

1495, 1527 n. 48 (llth Cir. 1991); Alexander v. Choate , 469

U.S. 287, 300, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1995).

110. The term “necessary” is linked to the goal of

affording an equal opportunity to the handicapped. Smith & Lee

Assocs., Inc. , supra . It envisions the concept, expressed in

THA’s Guidebook, that a reasonable accommodation may require

something different than treating the handicapped person

identically to a non-handicapped person. ( See Finding of Fact

52.) However, it does not contemplate superior treatment for

the disabled. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment

of Twp. of Scotch Plains , 284 F.3d 442, 460 (3d Cir. 2002);

Forest City Daly Housing, Inc. v. Town of North Hempstead , 175

F.3d 144, 152 (2d Cir. 1999).

111. Herein, Petitioner requested two accommodations and

was denied a grievance hearing on them. Petitioner's request

for a grievance hearing clearly prohibits Respondent from now

claiming it had no opportunity to accommodate Petitioner through

its established procedures ( See Schwarz at page 1219), but

Respondent has not raised such a defense. THA's denial of a

grievance hearing is an egregious breach of THA and HUD rules,

policy, and procedure, as well as a breach of Petitioner’s

lease, but it was not demonstrated to be linked to

discrimination on the basis of handicap/disability, and a full

and complete hearing now having been provided Petitioner on all

issues, a grievance hearing at this point would serve no

purpose.

112. Petitioner submits that the instant case is

controlled by Jacobs v. Concord Village Condominium Association ,

supra , to the effect that where an accommodation has been in

effect for several years without incident, and there has been no

change in the needs of the accommodated tenant, the

accommodation is presumptively “reasonable.” In other words,

Petitioner suggests that, having allowed Petitioner and his

live-in aide to live in a three-bedroom, two-bath unit at

Connector Drive for six years, Respondent is, in effect,

estopped to deny the reasonableness of the accommodations

requested.

113. This argument has limited validity as to allowing

Petitioner to remain as a Section 8 renter at Connector Drive.

It has no validity as to the argument that Respondent should

have been permitted to purchase the Connector Drive home below

market value, without meeting any of the requirements of THA’s

home ownership program, in violation of HUD standards. No

landlord is required to discriminate against all other tenants

or potential buyers in order to accommodate a single tenant or

buyer. Specifically, as to any disability accommodation,

Respondent had no obligation to alter its entire program (rules,

policies, practices, or services) in order to accommodate one

tenant/buyer. A proposed accommodation amounts to a [non-

required] "'fundamental alteration' if it would eliminate an

'essential' aspect of the relevant activity." See Schwarz , at

page 1219, and cases cited therein.

114. In Jacobs , supra , the U.S. District Court for the

Southern District of Florida found that the plaintiff had made a

prima facie showing of the need and necessity for an

accommodation where her condominium association had known of her

disability (weakness from prior polio requiring use of a

wheelchair) for 22 years and had allowed the accommodation (a

wheelchair ramp to a generator closet) for the first 20 years

without question, but thereafter would not allow the plaintiff

to replace the ramp when a person or persons unknown tore down

the ramp. The court held that where the defendant association

had acquiesced in the plaintiff’s handicap for 20 years, failed

to question the nature and extent of her disability for 20

years, and the accommodation had been in place for 20 years

without incident, the condo association must have known that the

ramp was necessary for the plaintiff to use and enjoy her

dwelling, and therefore the association was, in effect, estopped

from contesting the extent to which the plaintiff’s disabilities

affected her major life activities. The court held, “The fact

that the Defendant allowed the Plaintiff to have a ramp for 20

years and now refuses to allow it to be replaced supports

Plaintiff’s contention that the Defendant acted intentionally to

preclude the ultimate enjoyment of her condominium in violation

of the Fair Housing Act.” Id . at 4883.

115. In so ruling, the U.S. District Court was addressing

knowledge in the condominium association of Ms. Jacobs’ meeting

the statutory and case law definitions of “handicap,” knowledge

of her specific need for a ramp as a reasonable accommodation,

and its failure for 20 years to either investigate or open a

dialogue to determine those issues (qualification as handicapped

and reasonableness of the specific accommodation) if it had any

doubt.

116. In public housing, we have a very different

situation.

117. When Petitioner was transferred, many other tenants,

both disabled and able-bodied, were also transferred.

Respondent's action did not single out Petitioner or any

disabled person.

118. For six years, Respondent herein has always

acknowledged that Petitioner is handicapped and that he needs

one extra bedroom to house his live-in aide. Petitioner’s

annual lease and other documents had, for six years, always

advised him that Respondent reserved the right to re-size living

arrangements at any time in accord with its policy to house as

many low income people as possible ( See Finding of Fact 26.) and

that Petitioner would have to prove entitlement to the space

annually, at a minimum. The Guidebook clearly states that

handicapped persons may be left in over-housed situations when

no other tenant needs the location, but must expect to move when

the space is needed for a larger-sized family. ( See Finding of

Fact 27.) The fact that Petitioner was allowed to remain at

Connector Drive for six years probably had something to do with

THA’s hope he could eventually purchase it, but even if his

over-housing situation was merely a repeated oversight at annual

recertifications, that prolonged over-housing did not establish

Petitioner’s right to remain or represent Respondent’s

acquiescence in Petitioner's use of one bedroom and the garage

to store his exercise equipment forever.

119. Until alerted, and alerted obliquely at that ( See

Findings of Fact 60-61) Respondent had no reason to know that

Petitioner was using the third bedroom at Connector Drive to

house exercise equipment. In 2008, when Petitioner requested,

to purchase, THA provided him with relevant information, and

Petitioner did not follow-through. THA opened a dialogue with

Petitioner about what accommodations he would need at the new

location: ADA toilet, etc. THA also opened a dialogue with

Petitioner’s physician and received information concerning

Petitioner’s exercise equipment that Ms. Cromartie reasonably

interpreted as insufficient to justify leaving Petitioner in a

three-bedroom house. “‘The duty to make a reasonable

accommodation does not simply spring from the fact that a

handicapped person . . . wants such an accommodation made,’ but

rather ‘Defendants must instead have been given an opportunity

to make a final decision with respect to Plaintiff’s request,

which necessarily includes the ability to conduct a meaningful

review of the requested accommodation to determine if such

accommodation is required by law.’ Id. at 12581 (citations

omitted), Hawn v. Shoreline Towers Phase I Condominium Assoc.

Inc. , supra , quoting Prindable v. Association of Apartment

Owners of 2987 Kalakaua , 304 F. Supp. 2d 1245 (D. Hawaii 2003),

affirmed sub. nom. Dubois v. Assoc. of Apartment Owners of 2987

Kalakaua , 453 F.3d 1175 (9th Cir. 2006).

120. When Petitioner was right-sized and transferred to

Brighton Road, many other tenants, both disabled and able-

bodied, were also right-sized and transferred. Petitioner was

not singled-out.

121. Petitioner wanted more space and an extra bathroom so

his daughter/aide could have more privacy and space, but

presented no evidence that housing guidelines were applied

inequitably or that her situation was different than that of any

other live-in aide.

122. THA can only be charged with the information provided

it at the time of the alleged discrimination, and that

information reasonably led Ms. Cromartie to believe that

Petitioner could store his exercise equipment in his bedroom at

the Brighton Road address.

123. Even given the additional information provided

and found as fact in this hearing, Petitioner’s Total Gym is not

the equivalent of Mrs. Jacobs’ wheelchair. “The concept of

necessity requires at a minimum the showing that the desired

accommodation will affirmatively enhance a disabled plaintiff’s

quality of life by ameliorating the effects of the disability.”

Bronk v. Ineichen , 54 F.3d 425, 429 (7th Cir. 1995). Petitioner

has not shown that the Total Gym meets this standard.

Petitioner can perform all exercises recommended by

professionals without using the Total Gym. If Petitioner wants

to use the Total Gym to the exclusion of the prescribed free

weights and other apparatus, his daughter can set it up and take

it down for him. She has to help him with both free weights and

with the Total Gym. The space in which to use the Total Gym,

seven-and-a-half feet long, by three feet wide, by 42 inches

high, plus some room for the daughter to assist, is not entirely

prohibited for intermittent use by the floor plan of the

Brighton Road House. The Brighton Road House’s configuration is

inconvenient and does not provide 144 square feet, which would

handle all the exercise equipment Petitioner had at the

Connector Road House together with the aide assisting with

exercises, but use of all the equipment simultaneously has not

been the thrust of this case, anyway.

124. Petitioner has not established a prima facie case

of a reasonable accommodation, and his case of discrimination

accordingly fails.

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 Petition for Relief

and Charge of Discrimination.

DONE AND ENTERED this 8th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July, 2009.

ENDNOTE

1/ Moreover, the Connector Drive unit had been purchased by THA

for approximately $73,000 in 1997. In 2003, it had been

independently appraised at $97,900. It would reasonably be

worth more in 2008. In 2002, the Tallahassee Lender’s

Consortium, a group that partners with THA to help applicants

qualify to buy homes, had qualified Petitioner for a $19,800,

mortgage. In or around the same time frame, THA’s Board

authorized THA to issue soft second mortgages to qualified

applicants who had obtained a qualified first mortgage from an

independent lender. There was no proof that a $25,000, soft

second mortgage was ever authorized by THA’s Board for this

particular Petitioner, but even if it had been, Petitioner’s

available funds in 2008, would only have been $4,800, which was

substantially below the Connector Drive unit’s assessed value.

Also, at all times material, THA’s Board had a firm policy not

to sell any of its properties below its independently appraised

value. ( See Finding of Fact 10.) Also, Petitioner was unable

to demonstrate that P-39, qualified him for $72,750, through

THA, or was more than a demonstrative item for explaining the

home purchase voucher process to him.

COPIES FURNISHED :

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

Linda G. Bond, Esquire

Rumberger, Kirk & Caldwell, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

Edward J. Grunewald, Esquire

The North Florida Center for Equal Justice, Inc.

2121 Delta Boulevard

Tallahassee, Florida 32303

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.