11-001619 Estella Smith vs. Sarasota Housing Authority Status: Closed Recommended Order on Wednesday, August 17, 2011.

Summary: Petitioner failed to establish that her housing benefits were terminated based upon her disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESTELLA SMITH , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1619

)

SARASOTA HOUSING AUTHORITY , )

)

Respondent . )

)

RECOMMENDED ORDER

A video teleconference final hearing was conducted on

July 25, 2011, between Sarasota and Tallahassee, Florida, before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division). By prior Order,

Petitioner participated in the hearing by telephonic conference

call from Chickasaw County, Mississippi.

APPEARANCES

For Petitioner: Elizabeth M. Boyle, Esquire

Gulfcoast Legal Services, Inc.

Glasser Schoenbaum Human

Services Center

1750 17th Street, Unit I

Sarasota, Florida 34234

For Respondent: Ricardo L. Gilmore, Esquire

Saxon, Gilmore, Carraway

and Gibbons, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue s are whether Respondent, Sarasota Housing

Authority (the Housing Authority), discriminated against

Petitioner, Estella Smith (Ms. Smith), based on her disability

in violation of the Florida Fair Housing Act (the Florida FHA ),

and, if so, the relief to whi ch 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 FHA, sections 760.20 through 760.37,

Florida Statutes (2010) . 1/ On F ebruary 22, 2011, Ms. Smith was

notified that the Housing Authority was terminating her HUD

housing choice voucher assistance, a/k/a Section 8 housing

choice voucher benefits (Section 8 program) , for two reasons:

an unauthorized person 2/ living in the cur rent rental unit and

" family obligation failure to pay rent. " Ms. Smith immediately

requested an administrative hearing regarding the termination of

her assistance .

On March 2, 2011, the Housing Authority conducted a hearing

and determined that Ms. Smith ' s termination from the Section 8

program was based on the two program violations: an

unauthorized person living in her current rental unit and her

failure to pay rent in a timely fashion.

On March 22, 2011, Ms. Smith ' s executed Petition for Relief

was fil ed with the FCHR. The petition alleged that the Housing

Authority violated the Florida FHA as amended and also violated

" Sections 804b or f and 804fsB of Title VIII of the Civil Rights

Act of 1968 as amended by the Fair Housing Act of 1988 and

Section 504 of the 1973 Rehabilitation Act. " Specifically, the

complaint alleged that Ms. Smith attempted to pay her rent

obligation late, but the landlord refused it, and that she did

not have an unauthorized person in her rental unit as the

individual was her live - in aide.

On March 29, 2011, the FCHR transferred the case to the

Division. A Notice of Hearing dated April 20, 2011, scheduled

the hearing for June 27, 2011. Following one continuance, the

hearing was held on July 25, 2011.

At the final hearing, Ms. Smith testified on her own

behalf. Petitioner's pre - numbered Exhibits 2 through 10, 12,

13, 15, 17, 18, 22, 23, 24 and 26 were admitted into evidence.

The Housing Authority called one witness: Sharla Frantz, of the

Housing Authority. Respondent ' s Compo site Exhibit A and

Composite Exhibit B were admitted into evidence.

There was no court reporter present at the hearing.

Accordingly, there was no transcript filed.

The parties timely submitted their proposed recommended

orders, which have been duly cons idered in the prepara tion of

this Recommended Order.

FINDINGS OF FACT

1. Ms. Smith, a 52 - year - old female, testified she

participated in the Section 8 program for over ten years and

never had any problems until she moved to Sarasota. Ms. Smith

moved into the Sarasota rental unit in October 2009.

2. The Housing Authority is a public housing authority

that administers the Section 8 program, within Sarasota County,

Florida, pursuant to 42 U.S.C. s ection 1437f.

3. Under the Section 8 program, the Housing Aut hority uses

funds, supplied by HUD, to pay a percentage of the monthly rent

on a leased " unit " directly to the landlord. The Section 8

program tenant pays the balance of the monthly rent to the

landlord.

4. Ms. Smith executed a residential lease for a H UD -

approved unit on September 5, 2009, to begin a one - year rental.

Ms. Smith agreed to abide by all the terms and conditions of the

residential lease, including the timely payment of rent and the

number of occupants (one adult and one child) in the rental unit

without the written consent of the landlord. On or about

October 1, 2009, Ms. Smith moved from Tampa, Florida, to

Sarasota, Florida, and resided at the rental unit, 3047 East

Tamiami Circle, Apartment A, Sarasota, Florida.

5. On September 8, 2009, Ms. Smith executed the Housing

Authority ' s personal declaration/tenant information form. Under

part three of this form labeled: " Family Members (including

Head of Household) currently residing in unit , " there were blank

lines to be completed by Ms. Smith . The following information

was requested: name; date of birth; social security number;

disabled; Hispanic; race; and relationship. Ms. Smith (or

someone at her direction) completed the form including

information about herself and her sole dependant. U nder the

disabled heading on the line for Ms. Smith, the word " Pending "

is written. Additionally, in part five of this form labeled:

" Expenses, " was a question, " Are you or your spouse age 62 or

older and/or disabled? " Ms. Smith (or someone on her behal f)

checked the box before " no " after this specific question.

6. Ms. Smith testified she suffered a stroke sometime in

2009 and was physically affected by it. However, she was unable

to reference the specific time frame except for prior to her

" porting " back to Sarasota. Ms. Smith claimed to use both a

walker and a wheelchair at various times since suffering the

effects of the stroke. Further, she later testified that, when

she was in her rental unit, the doorways were narrow but she

could maneuver in it.

7. During her initial interview with the Housing Authority

in September 2009, Ms. Smith stated she was using a walker that

day and never told anyone at the Housing Au thority that she was

disabled.

8. Ms. Smith admitted she withheld the rent from the

landlord. However, she claimed her refusal to pay the rent was

based on the lack of heat in the rental unit and the suspension

of her laundry room privileges.

9. Ms. Smith further testified Bertha L. Pete (Ms. Pete)

provided Ms. Smith with assistance in her daily living

activities and started living in Ms. Smith ' s rental unit after

Christmas or in late December 2009. A copy of Ms. Pete ' s

Florida driver 's license, which reflects Ms. Smith ' s rental unit

address as Ms. Pete ' s residence as of January 27, 201 0, was

admitted into evidence.

10. On February 10, 2010, Ms. Smith executed a request for

a live - in aide with the Housing Authority. Ms. Smith named

Ms. Pete to be her proposed live - in aide. The date stamp for

the Housing Authority reflects that the req uest was received by

the Housing Authority on February 17, 2010. Any proposed live -

in aide has to meet the requirements imposed by the Housing

Authority and HUD. Ms. Pete did not meet the requirements.

11. Additionally, on February 17, 2010, Ms. Smith e xecuted

a verification of live - in aide form to be completed by her

physician and returned to the Housing Authority. That completed

form was never returned to the Housing Authority. Both parties

produced an executed medical doctor ' s prescription with

Ms. Smith ' s name as the patient. The hand - written notation on

the prescription is " patient needs in home aid. " This verbiage

is not sufficient nor equivalent to the requirements listed on

the verification form for a " live - in aide. "

12. The Housing Authority did not know that Ms. Smith

needed a live - in aide when she completed her application in

September 2009. Although Ms. Smith utilized a walker at the

time of her initial interview with the Housing Authority, the

Housing Authority did not know she was disab led at that time.

It is not the Housing Authority ' s practice to inquire of

someone ' s physical status, as that could be perceived as a

discriminatory question.

13. Sharla Frantz (Ms. Frantz), director of human

resources for the Housing Authority, is the h earing officer for

the Section 8 program. Ms. Frantz testified as to the process

utilized in the Housing Authority 's Section 8 program.

14. Ms. Frantz testified that Ms. Smith made a request for

assistance on January 27, 2010, regarding the lack of heat in

her rental unit. The Housing Authority caused an inspection to

be made that same day, and a deficiency was noted. The repair

was completed, and the rental unit passed a follow - up inspection

on February 28, 2010. However, at the time of her complaint,

Ms. Smith did not discuss any other conditions or circumstances

regarding the rental unit, nor was any request for a live - in

aide made.

15. On or about February 11, 2010, the Housing Authority

was made aware of a possible unauthorized person living at

Ms . Smith ' s rental unit, as well as her failure to timely pay

rent. Several days later, the Housing Authority issued a letter

to Ms. Smith detailing the reasons for her termination from the

Section 8 program: an unauthorized person living in the rental

unit and her failure to pay rent.

16. Ms. Smith requested a hearing from the Housing

Authority , which was held on March 2, 2010. As a result of the

hearing, the Housing Authority issued a letter detailing the

basis for Ms. Smith ' s termination from the Section 8 program:

an unauthorized person living in the rental unit and her failure

to pay rent. Ms . Smith was afforded time to prove that the

rental amount was paid in full and that Ms. Pete did not live

with h er.

17. Ms. Frantz testified that at the Housing Authority

hearing, Ms. Smith wrote a check for the past due rental amount.

However, Ms. Frantz never received proof that the payment was

actually made to the landlord. Ms. Smith testified the landlord

wan ted the payment in cash; however, Ms. Smith did not feel

comfortable paying the rent in cash, as it did not provide her

with a receipt. The rent was never paid.

18. After waiting several days, the Housing Authority

issued another letter to Ms. Smith stat ing that Ms. Smith was

terminated from the Section 8 program for two program

violations. It further described that a lease agreement,

brought in to the Housing Authority, did not substantiate her

claim that an unauthorized person (Ms. Pete) was not living in

Ms. Smith ' s rental unit.

CONCLUSIONS OF LAW

19. The Division has jurisdiction over the parties to and

the subject matter of this proceeding pursuant to sections

120.569 and 120.57(1), Florida Statutes.

20. Ms. Smith has the burden of proving by a pre ponderance

of the evidence that the Housing Authority violated the Florida

FHA by discriminating against her as alleged in her complaint.

§§ 120.57(1)(j) & 760.34(5), Fla. Stat.

21. The preponderance of the evidence standard requires

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

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

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

Lyons ,763 So. 2d 276, 28 0 n.1 (Fla. 2000).

22. The Florida FHA is codified in sections 760.20 through

760.37. Subsection 760.23 reads in pertinent part:

Discrimination in the sale or rental of housing

and other prohibited practices. --

* * *

(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, famil ial status, or

religion.

23. There is, in housing discrimination cases, a shifting

of the burden of persuasion between a petitioner and a

respondent. In McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973), the Supreme Court established an analysis to be

followed. Under that analysis, a petitioner has the initial

burden to prove a prima facie case of discrimination. In order

to establish a prima facie case, Ms. Smith must simply show that

she is a member of a protected class (handicapped/disabled);

th at she is ready, willing, and able to reside in the rental

unit; the Housing Authority is aware of her protected class; and

the Housing Authority took an action against her because of her

protected class. The prima facie case has not been established.

Se e , e.g. , Wells v. Burger King Corporation , 40 F. Supp. 2d 1366

(Fla. 1998).

24. As shown by the preponderance of the evidence, the

Housing Authority took the action to terminate Ms. Smith ' s

participation in the Section 8 program because she failed to pay

her rent in a timely manner, and she had an unauthorized person

living in her rental unit without the Housing Authority ' s

permission or knowledge.

25. There is no evidence in the record to support the

allegation of discrimination based on Ms. Smith ' s disa bility.

There is no evidence that the Housing Authority discriminated

against any protected class. There is no persuasive evidence

that Ms. Smith was discriminated against by the Housing

Authority. Ms. Smith failed to prove her claim.

26. As to Ms. Smi th ' s claim of retaliation, there was no

evidence presented, persuasive or otherwise, that the Housing

Authority took any action whatsoever that would support the

claim. None of the evidence presented could reasonably be

inferred to substantiate such a cla im.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

filed by Estella Smith in its entirety.

DONE AND ENTERED this 1 7 th day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of August , 2011 .

ENDNOTES

1/ All references to Florida Statutes are to 2010, unless

otherwise noted.

2/ Throughout the course of the hearing and within the exhibits

the phrases " unauthorized person " or " illegal boarder " are used

interchangeably. For a consistent reference, the te rm

" unauthorized person " shall be used.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Elizabeth M. Boyle, Esquire

Gulfcoast Legal Services, Inc.

Glass er Schoenbaum Human

Services Center

1750 17th Street, Unit I

Sarasota, Florida 34234

Ricardo L. Gilmore, Esquire

Saxon, Gilmore, Carraway

and Gibbons, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602

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.