09-002402 Mae Tennie vs. Hialeah Housing Authority Status: Closed Recommended Order on Wednesday, December 16, 2009.

Summary: No discrimination was shown because Petitioner failed to prove that the requested action was a reasonable accommodation of her handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAE TENNIE, )

)

Petitioner, )

)

vs. ) Case No. 09-2402

)

HIALEAH HOUSING AUTHORITY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 5, 2009, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Stephen Lewis, Esquire

Legal Services of Greater Miami, Inc.

10720 Caribbean Boulevard, Suite 400

Miami, Florida 33189

For Respondent: S. Nicole Bates, Esquire

Hialeah Housing Authority

75 East 6th Street

Hialeah, Florida 33010

J. Frost Walker, III, Esquire

Law Offices of Citrin & Walker

100 West Sunrise Avenue

Coral Gables, Florida 33133

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the

basis of handicap in violation of the Florida Fair Housing Act

and, if so, the relief to which Petitioner is entitled.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) and the

Federal Department of Housing and Urban Development (HUD)

administer the Florida Fair Housing Act, Sections 760.20 –

760.37, Florida Statutes 1 (the Florida FHA). On June 2, 2008,

Petitioner filed with HUD a complaint against Respondent

alleging that she had been injured by a discriminatory act by

Respondent. The allegations, succinctly stated, are that

Petitioner suffers from a handicap; that she received

notification from Respondent that her eligibility was going to

be terminated subject to an appeal that had to be requested

within ten days; that she requested a chance for an appeal of

the decision to terminate her eligibility after the ten days had

expired; and that Respondent failed to make a reasonable

accommodation of her handicap by denying her right to an appeal

after the deadline had expired.

Following an investigation, FCHR issued its “Notice of

Determination of No Cause” on March 28, 2009.

On April 30, 2009, Petitioner filed the subject Petition

for Relief with the FCHR. On May 6, 2009, the matter was

referred to DOAH, and this proceeding followed.

In response to the Pre-Hearing Order entered in this

proceeding, the parties filed a Joint Pre-Hearing Statement that

contained certain stipulated facts. Those stipulated facts have

been incorporated herein as Findings of Fact.

At the formal hearing, Petitioner testified on her own

behalf and presented pre-lettered Exhibits A, B, and G.

Petitioner’s Exhibits B and G were admitted as submitted.

Petitioner’s Exhibit A consisted of five pages. Only the first

page of that exhibit was admitted.

Respondent presented the testimony of Paulette Smith

(Assistant Section 8 Director for Respondent). Respondent

offered pre-numbered Exhibits 1 and 3-11, each of which was

admitted into evidence.

A Transcript of the proceeding, consisting of one volume,

was filed November 16, 2009. The parties filled Proposed

Recommended Orders, which have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At times relevant to this proceeding, Petitioner, a

female born in October 1953, received housing assistance from a

federally funded assistance program referred to as the Section 8

Choice Voucher program (the Section 8 program). The Section 8

program relevant to this proceeding is administered by

Respondent and has eligibility criteria that a participant must

meet. A participant receives a voucher from the Section 8

program that pays part, but not all, of the participant’s rent.

Petitioner has also received Supplemental Security Income (SSI)

at all times relevant to this proceeding. Respondent knew that

Petitioner received SSI, but it had no information as to why she

qualified to receive SSI.

2. At the times relevant to this proceeding, Petitioner’s

landlord was named Rupert Phipps. On May 27, 2007, Mr. Phipps

issued to Petitioner a notice styled “Three-day Notice for Non-

payment of Rent pursuant to Florida Statutes" (Notice). After

stating the amount owed and the address of the rented premises,

the Notice demanded “. . . payment of the rent or possession of

the Premises within three days (excluding Saturday, Sunday and

legal holidays). . . .”

3. Petitioner was evicted from her apartment. The date of

the eviction was not established.

4. After being advised by Mr. Phipps that Petitioner had

failed to pay her rent, Ms. Smith mailed to Petitioner a

certified letter dated July 6, 2007, stating that she would be

terminated from the Section 8 program effective August 6, 2007.

The stated reason for the termination was Petitioner’s failure

to pay rent to the landlord, which is considered a serious

violation of the lease and, therefore, a violation of 24 C.F.R.

§ 982,511(4)(c), which prohibits a participant in the Section 8

program from committing any serious or repeated violation of the

lease with the participant’s landlord. Ms. Smith’s letter also

contained the following statement:

. . . If you wish to appeal this decision,

you have the right to an informal hearing.

The request must be submitted to this agency

in writing within 10 days from the date of

this letter. Your request should be

directed to Alex Morales, Executive

Director.

5. The ten-day period for the appeal is part of

Respondent’s written policies and is consistent with the

requirements of 24 C.F.R. § 982.554(a), that require an agency

such as Respondent to have a written appeals process.

6. Respondent has consistently treated the failure of a

participant to pay his or her share of the rent as a serious

violation of a lease.

7. Petitioner was familiar with Respondent’s appeal

process because she had successfully appealed a prior notice of

termination of her participation in the Section 8 program.

8. Ms. Smith’s letter was received by Petitioner on

July 7, 2007.

9. At some undetermined time between July 7 and July 19,

2007, Ms. Tennie called Ms. Smith and told Ms. Smith that she

was sick. Ms. Smith told Ms. Tennie that she would have to

follow the instructions set forth in the letter and respond in

writing if she wanted an informal appeal.

10. On July 19, 2007, Petitioner sent the following letter

to the attention of Ms. Smith and Mr. Morales:

Would you give me Mae Tennie another

hearing because I got the letter to [sic]

late and I was in the hospital due to an

anurism [sic] stroke at the brain their

[sic] was blood on my head and I’m still

rehabilitating the after affects [sic] of

this serious condition. In the case of my

Section 8 voucher being terminated I plead

for another hearing due to the terms [sic]

of my hospitalization.

11. Respondent received Petitioner’s letter on July 23,

2007. Petitioner’s written request for an appeal was after the

ten-day deadline for filing the request.

12. By letter signed by Mr. Morales and dated July 25,

2007, Respondent denied Petitioner’s request contained in her

letter dated July 19 as follows:

I am in receipt of your letter requesting

a hearing. Please be advised that your

request for a hearing cannot be granted

because your request was not made within the

required 10 day period. For this reason,

your case will remain closed.

13. No further action was taken by either party to this

proceeding until December 2007, when Petitioner sought the

services of Legal Services of Greater Miami, Inc. On

December 20, 2007, Mr. Lewis, as counsel for Petitioner, sent

the following letter to Mr. Morales:

This office represents Ms. Mae Tennie

regarding her participation in the Section 8

program administered through the Hialeah

Housing Authority (“HHA”). Ms. Tennie has

been a participant of Section 8 through HHA

for the past 25 years.

On July 6, 2007, HHA served Ms. Tennie

with notice of its intent to terminate her

Section 8 assistance on the basis that she

violated one of her obligations under the

program. The notice informed Ms. Tennie of

her right to appeal the decision and to

attend an informal hearing. The written

request was to be submitted to HHA within 10

days of the date of the letter. Ms. Tennie

faxed her written request for an appeal on

July 19, 2007. A copy of Ms. Tennie’s

letter is attached as “Attachment A.” In

her request, she notified HHA that she was

unable to submit her request within the time

required because she [had] been, and still

was, recovering from a brain aneurism.[ 2 ] On

or about July 31, 2007, HHA notified Ms.

Tennie that her request was denied because

it was submitted too late. Ms. Tennie

requests that HHA reconsider its denial and

provide Ms. Tennie with an informal hearing

to appeal the termination.

Ms. Tennie is an elderly woman in failing

health. In June 2007, Ms. Tennie was

hospitalized twice at Jackson South

Community Hospital as a result of suffering

an “intracranial hemorrhage.”[ 3 ] I have

attached copies of supporting medical

documentation as “Attachment B.” As a

result of this very serious medical

condition, Ms. Tennie’s cognitive abilities

were significantly diminished. Ms. Tennie

was bed-bound and only able to communicate

under great strain.

The Fair Housing Act, the Americans with

Disabilities Act, and Section 504 of the

Rehabilitation Act of 1973, prohibits [sic]

any agency or landlord receiving federal

funds to deny equal access for individuals

with disabilities to housing or other

program benefits and services. To ensure

individuals with disabilities have equal

access to those services and benefits, an

agency or landlord is required to provide

reasonable accommodations to that person’s

disability. One form of reasonable

accommodations is the modification of a

program rule or policy.

The right to a hearing to appeal the

termination of Section 8 assistance is a

benefit that Ms. Tennie, as a participant,

was entitled to. Ms. Tennie made clear in

her letter to HHA that she was unable to

comply with HHA’s time requirement because

of her disabling medical condition.

Ms. Tennie also asked that the policy be

modified to accommodate her disability. HHA

should have reasonably accommodated Ms.

Tennie’s disability by simply modifying the

time period by adding 3 extra days for her

to submit her request for a hearing. By

failing to do so, HHA effectively denied

Ms. Tennie equal access to federal benefit

under the Section 8 program, that of having

a hearing to appeal her termination.

Ms. Tennie is therefore renewing her

request to HHA for reasonable accommodations

to her disability by modifying the time

limit to request a hearing. For the above

reasons, Ms. Tennie requests that HHA

reconsider its denial and provide Ms. Tennie

a hearing to challenge her termination from

Section 8.

Please do not hesitate to contact me with

any questions or additional information at

... . [telephone number omitted.]

[Footnotes omitted.]

14. By letter dated December 26, 2007, Respondent denied

the request set forth in Mr. Lewis’s letter. Thereafter,

Petitioner filed the complaint with HUD that culminated in this

proceeding as described in the Preliminary Statement of this

Recommended Order.

15. Ms. Tennie was hospitalized June 7, 2007, and

discharged June 14, 2007. Mr. Lewis attached to his letter a

discharge summary from Jackson Memorial Hospital, which

contained the following diagnoses on discharge:

1. Intracranial hemorrhage with

intraventricular extension secondary to

uncontrolled hypertension.

2. Diabetes.

16. The discharge summary reflects that Petitioner had

fallen the Saturday before admission and had hit her head on a

doorknob. The discharge summary reflects that on discharge she

was awake, alert, and oriented times three. She had fluent

speech and she was able to ambulate without difficulty. She was

instructed to make an appointment with her primary care doctor

in one week and to follow up in the Jackson Memorial’s Stroke

Clinic in 4 to 8 weeks. Petitioner was discharged to home in a

stable condition. Petitioner scheduled an appointment with

Milton R. Bengoa, M.D., and on June 18, 2007, she kept that

appointment. No finding is made as to Petitioner’s physical

status as determined by Dr. Bengoa because nearly all of his

notes of that meeting are illegible.

17. In response to questions from her attorney, Petitioner

testified as follows beginning at page 27, line 12:

Q. And Ms. Tennie, can you please

describe what your current health conditions

are?

A. Right now it’s not very good, because

after I had the aneurism I have been having

problems walking and problems breathing and

I have seizures that I never had before

until I had the aneurism and I take all

kinds of medicines. And I just found out

last week I have a brain mass and they don’t

know if it is cancer or what, because the

blood that was left in my head was still

there so I have excruciating headaches.

Q. And could you please explain what your

health condition was at or about the time

you suffered the stroke or shortly after you

had suffered the stroke?

A. Well, shortly after I suffered the

stroke I had to try and walk all over again,

because my memory where I had the stroke at,

the neurologist said that it was so deep in

my brain that they couldn’t do surgery and

that it was going to mess my motor skills

up. So I had to learn how to swallow. I

forgot how to swallow meat and stuff, so I

started eating soft food. I had problems

breathing, so when I come [sic] home I had a

breathing machine – oxygen machine there.

My daughter had to help me try to walk all

over again.

Q. And so I take it you had someone

helping you?

A. Yes. My daughter. I moved home with

my daughter, because they wanted to put me

out at Purdue, it is a nursing facility, but

she wanted me to come home with her, so that

is what I did. I went home with my daughter

and I stayed there for six months. Then I

found the place down the street, close to

her, which was a two bedroom.

Q. Now, prior to suffering the stroke,

how was your – can you describe what your

health condition was.

A. Before I had the stroke, I was sick

too. I have congestive heart failure, so I

kept going back and forth into the hospital

because of my breathing. When the water

built up around my heart it had [sic] me to

where I can’t breathe. So I have to go in

and let them pull the water off. And I was

sick before I had the stroke.

18. Petitioner also testified that she could not timely

request a hearing and blamed that inability on her general

medical condition. Petitioner’s testimony as to her medical

condition shortly after the hospitalization is unconvincing

because it contradicts the description of her medical condition

as described by her treating physician in the discharge notes.

The evidence established that Petitioner received Ms. Smith's

letter dated July 6, 2007, and understood its contents.

Petitioner’s testimony is insufficient to establish that her

medical condition caused her failure to timely request an

informal hearing to appeal of the termination of her

participation in the Section 8 program.

19. Petitioner failed to establish that she required an

extension of the expired deadline to request an informal hearing

as a “reasonable accommodation” of her condition.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the subject matter and the

parties hereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

21. Petitioner, who is asserting the affirmative of the

issues in this case, has the burden of proving by a

preponderance of the evidence that Respondent discriminated

against her as alleged in the Petition. See Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d

349, 350 (Fla. 1st DCA 1977) and Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

22. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

23. Section 760.23(8)(a), Florida Statutes, provides as

follows:

(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. . . .

24. In order to prevail in her claim of discrimination,

Petitioner must prove (1) that she is handicapped as defined in

the Florida FHA; (2) that Respondent knew or reasonably should

have known of her handicap; (3) that she requested a reasonable

accommodation under Respondent’s rules and regulations necessary

to afford her an equal opportunity to use and enjoy her

apartment; and (4) that Respondent refused to provide the

reasonable accommodation. See United States v. California

Mobile Home Park Management Co. , 107 F.3d 1374, 1380 (9th Cir.

1997). Petitioner’s burden is to prove all four prongs of this

analysis by a preponderance of the evidence.

25. Section 760.23(9)(b), Florida Statutes, provides that

for the purposes of Section 760.23(8)(a), Florida Statutes,

discrimination includes:

(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.

26. 42 U.S.C. § 3604(3)(f)(3)(B), which is part of the

Federal Fair Housing Act, contains the provisions identical to

Statutes.

27. Section 760.22(7), Florida Statutes, defines the term

“handicap” as follows:

(7) "Handicap" means:

(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.

28. Petitioner does not suffer a developmental disability.

Whether she suffers a “handicap” must be decided utilizing the

definition of Section 760.22(7)(a), Florida Statutes.

29. Because of the similarity of definitions, federal law

is used for guidance in evaluating the merits of claims arising

under the Florida FHA. In determining whether Petitioner has a

physical or mental impairment “which substantially limits one or

more of major life activities," it is appropriate to utilize the

following definition found in 42 U.S.C. § 12102, which is part

of the Americans with Disabilities Act:

(2) Major life activities.

(A) In general. For purposes of

paragraph (1), major life activities

include, but are not limited to, caring for

oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking,

standing, lifting, bending, speaking,

breathing, learning, reading, concentrating,

thinking, communicating, and working.

(B) Major bodily functions. For purposes

of paragraph (1), a major life activity also

includes the operation of a major bodily

function, including but not limited to,

functions of the immune system, normal cell

growth, digestive, bowel, bladder,

neurological, brain, respiratory,

circulatory, endocrine, and reproductive

functions.

30. Petitioner established that she is a handicapped

person within the meaning of Section 760.23, Florida Statutes.

Petitioner testified that she suffers congestive heart failure

which causes difficulty with her breathing. She testified that

she has recurring headaches and she has difficulty walking.

While the fact that she receives SSI does not prove that she is

a handicapped person, it is evidence that can and has been

considered in evaluating the evidence.

31. It is not necessary to evaluate whether Respondent

knew or should have known that Petitioner was handicapped

because Petitioner has failed to establish the third prong of

the analysis. Petitioner failed to prove by a preponderance of

the evidence that her handicap caused her failure to timely

request an appeal of her termination and, consequently, that an

extension of the expired deadline would have been a reasonable

accommodation of her handicap.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Florida Commission on

Human Relations enter a final order finding Respondent not

liable for the acts of discrimination alleged in the subject

Petition for Relief.

DONE AND ENTERED this 16th day of December 2009, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 16th day of December 2009.

ENDNOTES

1 / All statutory references are to Florida Statutes (2009).

2 / Both Mr. Lewis and Ms. Tennie refer to Ms. Tennie as

suffering from a brain aneurism. The hospital records reflect

that she had intracranial hemorrhage, uncontrolled hypertension,

and diabetes.

3 / Ms. Tennie was initially admitted to Jackson South hospital

in Miami. She was transferred to Jackson Memorial Hospital

because of its neurology department. The discharge summary

attached to Mr. Lewis’s letter was from Jackson Memorial

Hospital.

COPIES FURNISHED :

S. Nicole Bates, Esquire

Hialeah Housing Authority

75 East 6th Street

Hialeah, Florida 33010

J. Frost Walker, III, Esquire

Law Offices of Citrin & Walker

100 West Sunrise Avenue

Coral Gables, Florida 33133

Stephen Lewis, Esquire

Legal Services of Greater Miami, Inc.

10720 Caribbean Boulevard, Suite 400

Miami, Florida 33189

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.