08-004497 Vincent Hall vs. Miami-Dade Housing Agency Status: Closed Recommended Order on Thursday, January 8, 2009.

Summary: Petitioner failed to prove that Respondent had unlawfully discriminated against him on the basis of race, sex, or handicap in violation of the Florida Fair Housing Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT HALL, )

)

Petitioner, )

)

vs. ) Case No. 08-4497

)

MIAMI-DADE HOUSING AGENCY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by telephone conference call

between sites in Tallahassee, Miami, and West Palm Beach,

Florida, on October 17, 2008.

APPEARANCES

For Petitioner: Vincent Hall, pro se

2315 Waburton Terrace, No. C

Wellington, Florida 33414

For Respondent: Terrence A. Smith, Esquire

Miami-Dade County Attorney

111 Northwest First Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent unlawfully

discriminated against Petitioner on the basis of his race, sex,

or handicap in violation of the Florida Fair Housing Act.

PRELIMINARY STATEMENT

In a Housing Discrimination Complaint filed with the U.S.

Department of Housing and Urban Development in July 2008, and

subsequently investigated by the Florida Commission on Human

Relations ("FCHR"), Petitioner Vincent Hall, who is a black man

with an alleged (albeit unspecified) disability, charged that

Respondent Miami-Dade Housing Agency had unlawfully

discriminated against him by refusing to rent and failing to

make a reasonable accommodation. The FCHR investigated

Petitioner's claim and, on August 19, 2008, issued a notice

setting forth its determination that reasonable cause did not

exist to believe that a discriminatory housing practice had

occurred. Thereafter, Petitioner filed a Petition for Relief,

which the FCHR sent to the Division of Administrative Hearings

on September 15, 2008.

At the final hearing on October 17, 2008, Mr. Hall

testified on his own behalf and offered no additional evidence.

Respondent offered Respondent's Exhibits 1 through 7 during its

cross-examination of Mr. Hall, and these documents were received

in evidence. Respondent did not otherwise present a case.

The final hearing transcript was filed on December 9, 2008.

Thereafter, Respondent filed a proposed recommended order before

the previously established deadline of December 19, 2008.

Petitioner has not submitted a proposed recommended order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Vincent Hall ("Hall") is a middle-aged black

man. Although he alleges that he is handicapped, Hall failed to

produce any evidence during the final hearing concerning his

alleged disability——or even to identify it. 1

2. Respondent Miami-Dade Housing Agency ("Housing Agency")

is a department within Miami-Dade County (the "County"), which

is a political subdivision of the State of Florida. 2 The County

is the public housing authority ("PHA") within its territorial

jurisdiction. As the PHA, the County, through its Housing

Agency, administers several federally funded housing programs,

including the Section 8 Housing Choice Voucher Program ("Section

8").

3. The County is subject to, and must comply with, the

Ann-Marie Adker Consent Decree ("Consent Decree"), which the

U.S. District Court for the Southern District of Florida entered

in 1998. The Consent Decree requires the County to give certain

preferences in housing programs to eligible black public housing

residents who qualify as "mobility pool members."

4. Hall is a former resident of Smathers Plaza, one of the

County's public housing developments. (Hall lived in Smathers

Plaza for a period of time in 2000, leaving voluntarily in

November of that year, at which time he relocated to Palm Beach

County, where he continued to reside as of the final hearing.)

As a former public housing resident, Hall is a mobility pool

member.

5. On December 3, 2007, Hall executed a form called an

"Application for Assistance Under the Ann-Marie Adker, Et. Al.

Vs. United States Department of Housing and Urban Development

and Miami-Dade County Consent Decree," whose purpose is evident

from its title. Hall submitted this application to the Housing

Agency's Applicant and Leasing Center.

6. By letter dated May 2, 2008, the Housing Agency

instructed Hall to appear at the Applicant and Leasing Center on

May 15, 2008, for an appointment intended to begin the process

of verifying Hall's eligibility for assistance under the Consent

Decree. Hall attended this meeting, during which he completed

additional paperwork, including a form entitled "Change of

Address/Family Size or Special Unit Requirements." One of the

questions on this document asked: "Does the Head of Household

or other member of the family have a disability?" Hall

answered, "No." By signing the document, which Hall did on

May 15, 2008, Hall declared "that the information presented

[herein] is true and accurate."

7. Despite having disclaimed the existence of any

disability, Hall requested that he be provided a live-in aide.

Hall was furnished the documents necessary to apply for

"reasonable accommodations" such as an aide, which documents

included a certificate to be signed by a physician attesting to

the disability, but Hall never returned the completed forms.

Accordingly, the Housing Agency could not provide Hall a

reasonable accommodation and had not done so as of the final

hearing.

8. The Housing Agency did, however, authorize the issuance

of a Section 8 voucher for Hall, which he picked up on

August 21, 2008. The voucher gave Hall 60 days (extendible to a

maximum of 120 days) within which to locate an owner willing to

participate in Section 8. As of the final hearing, Hall had not

found a unit. The County's fair housing center, operated by

Housing Opportunities Project for Excellence, Inc. ("HOPE,

Inc.") stood ready to assist Hall if he sought help in returning

to Miami-Dade County to live. Unfortunately for him, Hall had

not taken advantage of the counseling available through HOPE,

Inc.

9. There is no competent, persuasive evidence in the

record, direct or circumstantial, upon which a finding of any

sort of unlawful housing discrimination could be made.

Ultimately, therefore, it is determined that the County and,

specifically, its Housing Agency, did not commit any prohibited

act vis-à-vis Hall.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

11. Under the Florida Fair Housing Act ("FFHA"), it is

unlawful to discriminate in the sale or rental of housing.

Although Hall has not identified the particular provisions of

the FFHA under which he purports to travel, it is reasonably

clear that he is attempting to assert discrimination claims

pursuant to Section 760.23, Florida Statutes.

12. Upon examination of the specific acts of unlawful

discrimination and other prohibited practices enumerated in

Section 760.23, it is concluded that the following provisions

are or might be implicated by Hall's allegations:

(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.

* * *

(7) It is unlawful to discriminate in the

sale or rental of, or to otherwise make

unavailable or deny, a dwelling to any buyer

or renter because of a handicap of:

(a) That buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available; or

(c) Any person associated with the buyer or

renter.

(8) 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 with such dwelling,

because of a handicap of:

(a) That buyer or renter;

(b) A person residing in or intending to

reside in that dwelling after it is sold,

rented, or made available; or

(c) Any person associated with the buyer or

renter.

13. For purposes of subsections (7) and (8) above, the

term "discrimination" includes:

(a) A refusal to permit, at the expense of

the handicapped person, reasonable

modifications of existing premises occupied

or to be occupied by such person if such

modifications may be necessary to afford

such person full enjoyment of the premises;

or

(b) A refusal to make reasonable

accommodations in rules, policies,

practices, or services, when such

accommodations may be necessary to afford

such person equal opportunity to use and

enjoy a dwelling.

§ 760.23(9), Fla. Stat.

14. The term "handicap" is defined to mean:

(a) A person has a physical or mental

impairment which substantially limits one or

more major life activities, or he or she has

a record of having, or is regarded as having,

such physical or mental impairment; or

(b) A person has a developmental disability

as defined in s. 393.063.

§ 760.22(7), Fla. Stat.

15. In cases involving a claim of housing discrimination,

the complainant has the initial burden of proving a prima facie

case of discrimination by a preponderance of the evidence.

Generally speaking, a prima facie case comprises circumstantial

evidence of discriminatory animus, such as proof that the

charged party treated persons outside of the protected class,

who were otherwise similarly situated, more favorably than the

complainant was treated. 3 Failure to establish a prima facie

case of discrimination ends the inquiry. See Ratliff v. State ,

666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA), aff'd , 679 So. 2d 1183

(1996)( citing Arnold v. Burger Queen Systems , 509 So. 2d 958

(Fla. 2d DCA 1987)).

16. If, however, the complainant sufficiently establishes

a prima facie case, the burden then shifts to the charged party

to articulate some legitimate, nondiscriminatory reason for its

action. If the charged party satisfies this burden, then the

complainant must establish by a preponderance of the evidence

that the reason asserted by the charged party is, in fact,

merely a pretext for discrimination. See Massaro v. Mainlands

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

Cir. 1993), cert. denied , 513 U.S. 808, 115 S. Ct. 56, 130 L.

Ed. 2d 15 (1994)("Fair housing discrimination cases are subject

to the three-part test articulated in McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).");

Secretary, U.S. Dept. of Housing and Urban Development, on

Behalf of Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)("We agree with the ALJ that the three-part burden of proof

test developed in McDonnell Douglas [for claims brought under

Title VII of the Civil Rights Act] governs in this case

[involving a claim of discrimination in violation of the federal

Fair Housing Act].").

17. To make out a prima facie case of discrimination, Hall

needed to show that he: (1) belongs to a protected class; (2) is

qualified to rent an available apartment or receive the services

in question; (3) was denied the apartment or services by the

Housing Agency; and (4) was treated less favorably by the

Housing Agency than were similarly situated persons outside of

the protected class. See , e.g. , Jackson v. Comberg , 2006 U.S.

Dist. LEXIS 66405, *15 (M.D.Fla. Aug. 22, 2006).

18. It is undisputed that Hall is a black man eligible for

housing preferences under the Consent Decree. Beyond that, Hall

failed to prove any of the facts required to establish a prima

facie case of discrimination on the basis of race or sex. Hall

alleged, but failed to adduce any competent evidence

establishing, that he is handicapped. Thus, he necessarily

failed to make out a prima facie case of discrimination on the

basis of handicap. Even if Hall had proved that he is disabled,

however, he still would not have prevailed, because the other

elements of a prima facie case of discrimination on the basis of

handicap were not established.

19. Hall's failure to establish a prima facie case of

discrimination ended the inquiry. Because the burden never

shifted to the Housing Agency to articulate a legitimate,

nondiscriminatory reason for its conduct, it was not necessary

to make any findings of fact in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FCHR enter a final order finding

the Housing Agency not liable for housing discrimination and

awarding Hall no relief.

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

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of January, 2009.

ENDNOTES

1 / The undersigned suspects that Hall actually does have some

sort of physical or mental impairment. This suspicion is based

on the undersigned's impression (which the final hearing

transcript bears out) that Hall is unable consistently to

communicate logical thoughts. Much of what he said at the final

hearing might even be described as schizophasic, but no expert

was introduced. Due to the lack of competent evidence, the

undersigned cannot find that Hall is disabled.

2 / The County argues persuasively that the Housing Agency is not

an independent legal entity and therefore cannot sue or be sued

in its own right. On this premise the County urges, under

several theories, that this cases should be dismissed for Hall's

failure to sue the proper party, namely the County. While the

County's position is not without merit, the undersigned declines

to dismiss Hall's case on this basis. In this particular

instance, where the County has mounted a competent and complete

defense to the charges, avoiding a determination on the merits

would serve no useful purpose. In contrast, a final disposition

of the disputed issues should be beneficial for both parties,

without causing undue prejudice to either.

3 / Alternatively, the complainant's burden may be satisfied with

direct evidence of discriminatory intent. See Trans World

Airlines, Inc. v. Thurston , 469 U.S. 111, 121, 105 S. Ct. 613,

621, 83 L. Ed. 2d 523 (1985)("[T]he McDonnell Douglas test is

inapplicable where the plaintiff presents direct evidence of

discrimination" inasmuch as "[t]he shifting burdens of proof set

forth in McDonnell Douglas are designed to assure that the

'plaintiff [has] his day in court despite the unavailability of

direct evidence.'").

COPIES FURNISHED :

Vincent Hall

2315 Waburton Terrace, No. C

Wellington, Florida 33414

Terrence A. Smith, Esquire

Miami-Dade County Attorney

111 Northwest First Street, Suite 2810

Miami, Florida 33128

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.