10-003335 Leandra Duran vs. Miami-Dade Board Of County Commissioners Status: Closed Recommended Order on Monday, October 18, 2010.

Summary: Petitioner did not prove housing authority failed to provide reasonable accomodation of a two bedroom unit. Housing authority request for additional identification when first identification bore different names was not national origin discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIO SAMA, )

)

Petitioner, )

)

vs. ) Case No. 10 - 3333

)

MIAMI - DADE BOARD OF COUNTY )

COMMISSIONERS AND ROYAL )

AMERICAN MANAGEMENT, INC. , )

)

Respondent s . )

)

LEANDRA DURAN, )

)

Petitioner, )

) Case No. 10 - 3335

vs. )

)

MIAMI - DADE BOARD OF COUNTY )

COMMISSIONERS AND ROYAL )

AMERICAN MANAGEMENT, INC. , )

)

Respondent s . )

)

RECOMMENDED ORDER

Administrative Law Judge, John D. C. Newton, II, of the

Division of Administrative Hearings, heard this case, as

noticed, on September 2, 2010, by video teleconference at sites

in Miami and Tallahassee, Florida .

APPEARANCES

For Petitioners: Julio Sam a pro se

1310 Northwest 16th Street, No. 319

Miami, Florida 33125

Leandra Duran pro se

c/o Julio Sama

1310 Northwest 16th Street, No. 201

Miami, Florida 32315

For Respondents: Miami - Dade County Board of County

Commissioners:

Shannon D. Summerset, Esquire

Terrence A. Smith, Esquire

111 Northwest First Street, Suite 2810

Miami, Florida 33128 - 1993

Roya l American Management :

Jamie B. Dokovna , Esquire

Becker and Poliakoff, P.A.

121 Alhambra Plaza, 10th Floor

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE S

A. Did Respondents discriminate against Mr. Sama because

of his handicap?

B. Did Respondents discr i minate against Ms. Duran on

account of her national origin?

PRELIMINARY STATEMENT

On February 24, 2010 Julio Sama and Leandra Duran filed

complaints of discrimination in public housing with the Florida

Commission on Human Relations (Commission). Mr. Sama claimed

that Respondents, Miami - Dade Board of County Commissioners

(Miami - Dade) and Royal American Management, Inc. (Royal

American), discriminated against him on account of a handicap.

Ms. Duran claimed that Respondents, Miami - Dade and Royal

American, discriminated a gainst her because of her national

origin. On May 18, 2010, the Commission issued its Notice of

Determination of No Cause in Ms. Duran's case. On May 27, 2010,

the Commission issued its Notice of Determination of No Cause in

Mr. Sama's case. Mr. Sama an d Ms. Duran both filed Petitions

for Relief with the Commission. On June 18, 2010 the Divis i on

of Administrative Hearings received referrals of both Petitions

from the Commission.

The undersigned consolidated the cases on June 25, 2010.

By notice dated J une 30, 20 1 0, the consolidated cases were set

to be heard by video teleconference on September 2, 2010. The

final hearing was conducted as notice d .

At the f inal h earing Mr. Sama and Ms. Duran presented the

testimony of themselves, Katia Cantu, Lizette Cap ote, Rafaela

Gendis, and Christian Rodriguez. They enter ed Petitioners'

Exhibit 1 into evidence.

Miami - Dade and Royal American did not offer testimony.

They entered the f ollowing exhibits into evidence: Respondents'

Exhibits 8, 10, 11, 13, and 15.

The c ourt reporter filed the transcript on September 16,

2010. All parties submitted P roposed R ecommended O rders.

FINDINGS OF FACT

Based on the testimony and other evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Mr. Sama is blind and has other physical limitations

that require him to have the 24 - hour assi s tance of an aide.

2. Ms. Duran is the live - in aide who provides the

assistance Mr. Sama needs. Although Mr. Sama refer s to

Ms. Duran as his daughter, she is not his daug h ter. Ms. Duran

is of Columbian descent, and a United States Citizen.

3. The Miami - Dade County Public Housing Agency (Housing

Agency) is an agency of the county . Royal American manages

housing for the H ousing Authority, including Singer Plaza.

4 . Miami - Dade and Royal American agree that Mr. Sama has a

handicap and requires the 24 - hour assi s tance of Ms. Duran.

5 . Mr. Sama applied to the Housing Agency for housing. He

sought to have Ms. Duran housed wit h him as a reasonable

accommodation f or his blindness and other handicaps. The

Housing Authority began processing his request for accommodation

and his housing request.

6 . October 1, 2009, the Housing Authority notified

Mr. Sama that he was approved for a one - bedroom unit at Singer

Plaza. Mr. Sama accepted the offer on October 5, 2009. He

moved in on December 3, 2009, and Ms. Duran moved in with him.

7 . Guidelines governing the Housing Authority provide that

two people cannot live in a one - bedroom unit without

specifically agreeing to a one - bedroom unit. The reason for the

policy is not in the record. Ms. Capote of the Miami - Dade

Housing Authority explained this requirement to Mr. Sama and

Ms. Duran. Ms. Capote asked Mr. Sama to sign a document

agreeing to accept a one - bedroom unit until a two - bedroom unit

became available. Mr. Sama and Ms. Duran became upset because

they thought that accepting the one - bedroom unit meant

abandoning their request for a two - bedro om unit. It did not.

Ms. Capote was not asking Mr. Sama to give up his place on the

waiting list for a two - bedroom unit. The Housing Authority

approved Mr. Sama for the one - bedroom unit to share with

Ms. Duran and put him on the waiting list for a two - b edroom

unit.

8 . The Housing Authority conducted its standard background

check of Ms. Duran as a proposed resident of Singer Plaza . It

performs the same background check for all residents. She was

reviewed the same way that all resident s are reviewed. T he

process includes verifying the resident's identi t y. Ms. Duran

submitted identification that included her Certificate of

Naturalization , her S ocial S ecurity card, and a Florida d river's

l icense.

9 . Ms. Duran's Florida license number b ore the name

Leand ra Duran Palma. Her Social Security card bore the name

Leandra Duran. Her Certificate of Naturalization bore the name

Leandra Duran. Because of the name differences, the Housing

Authority requested additional identification. This is the

Housing Authori ty's routine practice and was a reasonable

request. Ms. Duran provided her Columbian Identification Card

and Passport. They bear the name Leandra Margarita De Las

Nieves Duran Palma. After revie w ing all the documen t s and

discussing the name differences on the documents with Ms. Duran,

the Housing Authority accepted Ms. Duran as a resident serving

Mr. Sama as a live - in aide.

10. Mr. Sama and Ms. Duran began living in a one - bedroom

unit at Singer Plaza while awaiting a two - bedroom unit. They

wanted to re main in Singer Plaza and told Miami - Dade and Royal

American so .

11 . Miami - Dade and Royal American agree that a two - bedroom

living unit is a reasonable accommodation . On November 2, 2009,

the Housing Authority advised Mr. Sama that his request for a

two - bedroom unit with a live - in aide as a reasonable

accommodation was approved.

12. N o two - bedroom unit s were availab l e in Singer Plaza at

the time. The property had a limited number of two - bedroom

units. The Housing Authority and Royal American put Mr. Sama on

the waiting list for a two - bedroom unit.

13. Ms. Cantu of Royal American worked to make a two -

bedroom unit available for Mr. Sama. She identified a two -

bedroom unit occupied by one person. She then worked to locate

a one - bedroom unit to move th at person into. This took some

time. In March, 2010 , Ms. Cantu succeeded in relocating the

resident of the two - bedroom unit to make it available to

Mr. Sama. Cleaning and repairing the unit to prepare it for

Mr. Sama and Ms. Duran took several weeks.

14. Since May 26, 2010 , Miami - Dade and Royal American have

provided Mr. Sama and Ms. Duran a two - bedroom apartment , as they

requested , as an accom m odation for Mr. Sama . Ms. Duran does not

lease the apartment , but is authorized to live in it in her role

as Mr. Sama's aide.

15. Mr. Sama and Ms. Duran wer e not living in the

apartment as of the day of the hearing . They view it as

dangerous because of other residents. They also think it is in

unacceptably poor condition.

CONCLUSIONS OF LAW

1 6 . Sections 120.569 , 120.57(1), and 760.35 Florida

Statutes (20 1 0) , grant t he Divi sion of Administrative Hearings

jurisdiction over the subject matter of this proceeding and of

the parties.

17 . Mr. Sama brings his claim under Florida's Fair Housing

Act, S ections 760.20 - 760.37, Florida Statutes (2010) (Fair

Housing Act). He alleges that Miami - Dade and Royal American

engaged in a discriminatory housing practice by denying him a

reasonable accommodation b a sed on his disability. The

reasonable accommodation is a two - bedroom unit so that he and

his live - in aide would each have a bedroom.

18 . Section 760.23 (2) , Florida Statutes ( 2010) , makes it

unlawful to discriminate against any one on account of a handicap

in the sale or rental of housing. Discrimination in cludes

r efusal to make a reasonable accommodation that will allow a

person with a handicap an equal opportunity to use and enjoy a

dwelling. § 760.23(9)(b), Fla. Stat.

19 . Mr. Sama has the burden of proving by a preponderance

of the evidence that Miami - Dade and Royal American violated the

F air Housing Act . See §§ 760.34(5) a nd 120.57(1)(j), Fla. Stat.

20 . Miami - Dade and Royal American do not dispute that

Mr. Sama has a handicap as defined in S ection 760.22(7), Florida

Statutes (2010) , or that a t wo - bedroom uni t is a reasonable

accommodation . The only issue is whether they provided a

reasonable accommodation .

21 . Mr. Sama did not prove that Miami - Dade and Royal

American refused to make reasonable accommodation . The evidence

established that Mr. Sama so u ght a living unit in Singer Plaza

and was provided one. It also established that two - bedroom

units were limited and that Miami - Dade and Royal American work ed

to make a unit available and provided it to Mr. Sama in a

reasonable period of time. In addition , Miami - Dade and Royal

American permitted Mr. Sama's live - in aide, Ms. Duran , to share

the one - bedroom unit with him, while he was on the waiting list

for a two - bedroom unit. Miami - Dade and Royal American fulfilled

the obligations imposed by the F air Housing Act.

22 . The facts do not support Mr. Sama's claim of

discrimination.

23 . Section 760.23(2), Florida Statutes , makes it unlawful

to discriminate against any person in the terms, conditions, or

privileges of rental of a dwelling on account of the person's

national origin.

24 . Ms. Duran complains that Miami - Dade and Royal American

discriminated against her because of her national origin in

violation of S ection 760.23(2), Florida Statutes. The

discrimination Ms. Duran alleges is the request that she provide

additional forms of identification to clarify the name

differences between her Certificate of United States

Citizenship, her S ocial S ecurity card, and a Florida d river's

l icense.

25 . Ms. Duran bears the b urden of proving her claim by a

preponderance of the evidence. See §§ 760.34(5) a nd

120.57(1)(j), Fla. Stat. (2010 ).

26 . The Florida L egis l ature model ed the Fair Housing Act

after the United States Fair Housing Amendments Act of 1988.

Ther e fore , inte r pr etation of the federal law by federal courts

is instructive and persuas i ve in applying Florida's Fair Housing

Act. Dornbach v. Holley , 854 So. 2d 211(Fla. 2d DCA 2002).

27 . The legal framework developed by the federal courts in

discrimination cases bro ught under the Fair Housing Act of 1968

and Title VII of the Civil Rights Act applies. U.S. Dept. of

Housing and Urban Dev. V. Blackwell , 908 F . 2 d 864 (11th Cir.

1990). The three - part burden of proof test developed in

McDonnell Douglas Corp. v. Green, 41 1 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973) governs in this case. First, the

plaintiff must prove a prima facie case of discrimination by a

preponderance of the evidence. Second, if the plaintiff

establishes a prima facie case, the burden shifts to the

defendant to articulate some legitimate, nondiscriminatory

reason for its action. Third, if the defendant satisfies this

burden, the plaintiff has the opportunity to prove by

preponderance that the legitimate reasons asserted by the

defendant are i n fact mere pretext. Id.

28 . Ms. Duran established that she is a member of a

protected minority group. But she did not prove that she was

discriminated against in the terms conditions or privileges of

rental. There is no evidence that she was treated differently

than residents of a different national origin. Miami - Dade and

Royal American conducted a background check of her as they do of

all residents. When she provided identification documents with

two different names, Miami - Dade and Royal American acted

reasonably to clarify the differences and confirm her identity

by requesting additional forms of identification.

29 . The facts do not support Ms. Duran's claim of

discrimination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations deny the Petitions of Julio Sama and Leandra Duran.

DONE AND ENTERED this 18th day of October , 2010, in

Tallahassee, Leon Count y, Florida.

S

___________________________________

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Ad ministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18t h day of October , 2010.

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

Terrence A. Smith, Esquire

Miami - Dade County Attorney's Office

111 Northwest First Street, Suite 2810

Miami, Florida 33128

Julio Sama

1310 Northwest 16th Street, No. 319

Miami, Florida 33125

Lea ndra Duran

c/o Julio Sama

1310 Northwest 16th Street, No. 201

Miami, Florida 33125

Jamie B. Dokovna, Esquire

Becker and Poliakoff, P.A.

121 Alhambra Plaza, 10th Floor

Coral Gables, Florida 33134

Shannon D. Summerset, Esquire

111 Northwest First Street, Suite 2810

Miami, Florida 33128 - 1993

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 th e agency that

will issue the Final Order in this case.