11-003338 Patricia Myers vs. Sarasota Housing Authority Status: Closed Recommended Order on Tuesday, October 18, 2011.

Summary: Petitioner did not satisfy the burden of proof regarding discrimination based on disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA MYERS , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3338

)

SARASOTA HOUSING AUTHORITY , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was conducted on September 12, 2011, in

Sarasota, 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 her residence in

Englewood, Florida.

APPEARANCES

For Petitioner: Patricia Myers, pro se

6139 Grandeur Street

Englewood, Florida 34224

For Respondent: Ricardo L. Gilmore, Esquire

Saxon, Gilmore, Carraway

and Gibbons, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602 - 5819

STATEMENT OF THE ISSUES

The issues are whether Respondent, Sarasota H ousing

Authority (the Housing Authority), discriminated against

Petitioner, Patricia Myers (Ms. Myers), based on her medical

disability in violation of the Florida Fair Housing Act (the

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

PRELIMIN ARY STATEMENT

The Florida Commission on Human Relations (FCHR) and the

United States Department of Housing and Urban Development (HUD)

administer the Act, sections 760.20 through 760.37, Florida

Statutes (2010) . 1/ In March 2011, Ms. Myers was notified tha t

the Housing Authority was no longer allowing her 100 percent of

her supplemental assistance payments regarding her food, water,

bedding, and clothing, but was instead granting her 25 percent

of her requested supplemental assistance payments. Ms. Myers

i mmediately requested an administrative hearing regarding the

disallowance of the 100 percent supplemental assistance

payments .

On July 1, 2011, Ms. Myers executed a Petition for Relief

( P etition) , which was filed with the FCHR on July 5, 2011. The

P etitio n alleged that the Housing Authority violated the Act as

amended. Specifically, Ms. Myers ' s complaint alleged that the

Housing Authority failed to provide a " REASONABLE ACCOMODATION

when it calculated my medical deductions for this year. "

On July 6, 2011, the FCHR transferred the case to the

Division. A Notice of Hearing dated July 14, 2011, scheduled

the hearing for August 2, 2011. Following one continuance, the

hearing was held on September 12, 2011.

At the final hearing, Ms. Myers testified on her own behalf

and called one witness, Bennie Howard (Mr. Howard) . Ms. Myers

offered one composite exhibit (consisting of eight pages) , which

was admitted into evidence over Respondent ' s objection. 2/ The

Housing Authority called one witness: Paula Hoffman

(Ms. Hoffman) , director of the H UD h ousing c hoice voucher

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

(Section 8 program), for the Housing Authority. Respondent

offered three exhibits , which were admitted into evidence over

Petitioner ' s object ions.

There was no court reporter present at the hearing.

Accordingly, there was no transcript filed.

Petitioner requested additional time in which to submit her

proposed recommended order (PRO) , and the parties were given

until the close of business on F riday, October 7, 2011, to file

any PROs. Both parties have timely submitted their PROs , and

each has been considered in the prepara tion of this Recommended

Order.

FINDINGS OF FACT

1. Ms. Myers testified she began her participation in the

Sarasota commun ity with the Sarasota Office of Housing and

Community Development (development program) approximately 14 and

one - half years ago, because she was unable to join the Housing

Authority, when she was living in Venice. Further she testified

she has multiple he alth issues.

2. Based on an October 1, 2010, merger of the development

program and the Housing Authority, Ms. Myers ' s participation in

the Section 8 program came under the autho rity of the Housing

Authority.

3. The Housing Authority is a public housing a uthority

that administers the Section 8 program, within Sarasota County,

Florida. The Section 8 program is to assist low - income

families, the elderly, and the disabled to afford safe and

sanitary housing in the private market. The Housing Authority

is a municipal public housing authority, operated pursuant to

c hapter 421, Fl orida Stat utes .

4. Under the Section 8 program, the Housing Authority uses

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

expenses for its participants, within guidelines that have been

established.

5 . Mr. Howard, a former director within HUD for the

disabled community, testified that , when he was employed at HUD ,

and his office was contacted by Ms. Myers, he simply picked up

the telephone and communicated with the appropr iate housing

authority , and the problems were resolved. However, Mr. Howard

retired from HUD in 2007. Further he testified that he had not

reviewed Ms. Myers ' s file with the Housing Authority, nor had he

reviewed the Section 8 program guidebook or the Ho using

Authority ' s administrative plan.

6 . Mr. Howard did testify that the Housing Authority

granted Ms. Myers ' s reasonable accommodation with respect to her

annual or recertification housing inspection, in that the

housing authority allowed Ms. Myers to h ave a telephone

inspection of her rental unit. 3/

7 . Although Mr. Howard testified that he thought the

Housing Authority failed when it did not allow all of

Ms. Myers ' s medical expenses, he acknowledged that he lacked

specific knowledge regarding Ms. Myers ' s case and the Housing

Authority ' s programs and procedures. As such, Mr. Howard ' s

testimony is not credible with respect to the specifics of

Ms. Myers ' s case presentation.

8 . Mr. Howard further testified that he did not know how

the Housing Authority ar rived at the disallowance of Ms. Myers ' s

medical deduction, yet he professed a superior judgment to the

Housing Authority or the current Miami HUD field office. This

position makes his testimony less than forthright.

9 . With the merger of the two program s (development

program and the Housing Authority) on October 1, 2010, Ms. Myers

was one of approximately 425 family units affected by the

merger. Additionally , she was one of eight family units who

were found to actually live in another county, yet be ser viced

by the Housing Authority.

10 . Since the Housing Authority took over, participation

requirements are different from the development program, and all

the participants were notified that their benefits would be

reviewed at their recertification time.

1 1 . Ms. Myers testified that she received a letter from

the Housing Authority stating why there was a change in her

assistance payments.

1 2 . Ms. Myers testified that she has been paid

approximately $2,000 of her requested $5,000 medical expenses.

She bel ieves she should be reimbursed for it all because she has

medical sensitivities which are a lot different than other

people ' s issues. Ms. Myers did testify she was not totally

denied her medical reimbursement.

1 3 . Ms. Hoffman, the director of the Section 8 program ,

confirmed that the development program and the Housing Authority

merged on October 1, 2010. At the time of the merger, the

Housing Authority had created an operational document that

related to how it would determine payments or benefits to all

its clients, including the 425 new families. Ms. Hoffman

confirmed that the development program participants were allowed

to maintain those program benefits until they reached their

individual recertification cycle. She testified that , when each

partici pant came up for renewal, the Housing Authority had to

review their benefits, including a review of all their income,

assets, medical expenses, bank statements and related expenses.

1 4 . The Housing Authority has an administrative plan, a

guidebook as to h ow it handles participants. This

administrative plan is approved by the Board of Commissioners.

1 5 . Ms. Hoffman was involved in Ms. MyersÓs

recertification , in that she reviewed the documentation and

determined what was approvable and what was not approv able. At

first, there were several items that were not approved, such as

non - VOC paints and an air purifier. However, after discussions

with the Miami HUD field office, the Housing Authority agreed to

give Ms. Myers the non - VOC paints and an air purifier with

filters as a one - time expense.

1 6 . The Housing Authority utilized the approved

calculation method to determine what prescriptions or non -

prescription items could be paid. Although the Housing

Authority initially denied all of Ms. Myers ' s requested

supplemental assistance purchases, upon additional review, it

determined to provide her a 25 percent credit for those

purchases. The Housing Authority determined that all people on

the program must have food ; however, because she does pay more

for organic foods , an allowance was made.

1 7 . T he Housing Authority simply applied the approved

financial formula to Ms. Myers ' s submitted financial documents

to reach the 25 percent credit for her items. The Housing

Authority did not engage in any discriminatory p ractice to reach

this determination.

1 8 . On March 24, 2011, the Housing Authority notified

Ms. Myers of its determination to grant her the reasonable

accommodation with respect to the annual recertification of her

rental unit inspection as well as the bas is for the 25 percent

allowance for items such as food, water, clothing, and bedding.

1 9 . Ms. Hoffman credibly testified that the HUD field

office was fully aware of the Housing Authority ' s decision and

direction with this matter.

20 . Although not listed in her July 1, 2011, Petition

filed with the FCHR, Ms. Myers was reasonably accommodated by

the Housing Authority with respect to her housing

recertification.

CONCLUSIONS OF LAW

21 . The Division has jurisdiction over the parties to and

the subject matter of this proceeding pursuant to sections

120.569 and 120.57(1), Fl orida Stat utes (2011) .

22 . Ms. Myers has the burden of proving by a preponderance

of the evidence that the Housing Authority violated the Act by

discriminating against her.

23 . The prepond erance 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).

24 . The Act is codified in sections 760.20 through 760.37.

S ection 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, familial status, or religion.

25 . 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 pe titioner has the initial

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

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

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

Housing Authority is aware of her pro tected class; and the

Housing Authority took an action against her because of her

protected class. Th at prima facie case has not been

established. See , e.g. , Wells v. Burger King Corporation , 40 F.

Supp. 2d 1366 (Dis. Ct. No. Dis. Fla. 1998).

26 . As sho wn by the preponderance of the evidence, the

Housing Authority merged with another housing program. As a

result, the Housing Authority reviewed Ms . Myers ' s participation

to determine whether or not any adjustments to her benefits were

necessary to comply with the Housing Authority regulations.

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

allegation of discrimination based on Ms. Myers ' s disability.

There is no evidence that the Housing Authority discriminated

against any protected class. There is no persuasive evidence

that Ms. Myers was discriminated against by the Housing

Authority. Ms. Myers failed to prove her claim. 4/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be ente red by the Florida

Commission on Human Relations dismissing the Petition for Relief

filed by Patricia Myers in its entirety.

DONE AND ENTERED this 18th day of October, 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 18th day of October , 2011 .

ENDNOTES

1/ All references to Florida Statutes are to the 2010 version ,

unless otherwise noted.

2/ Although Petitioner ' s Composite Exhibit 1 was admitted into

evidence, the documents are hear say. Pages 1 through 6 were not

corroborated by the medical providers to support reliance

thereon. Page 7 contained two receipts for items ordered in

October 2010 and March 2011 , respectively ; however , there was no

credible comparison of similar item s pr ovided. Page 8 contained

four receipts from food stores; however , they appear to be after

the date the P etition was filed.

3/ Although hearsay, Mr. Howard ' s testimony was corroborated by

Ms. Myers ' s testimony.

4/ As previously stated, Ms. Myers did no t plead discrimination

in an actual housing issue, although her recertification for

housing was discussed at length during the hearing. The Housing

Authority did provide Ms. Myers with a reasonable accommodation

with respect to her recertification for con tinued housing via

the Section 8 program.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Patricia Myers

6139 Grandeur Street

Englewood, Florida 34224

Ricardo L. Gilmore, Esquire

Saxon, Gilmore, Carraway

and Gibbons, P.A.

201 East Kennedy Boulevard, Suite 600

Tampa, Florida 33602 - 5819

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.