11-006398RU Citizens For Pets In Condos, Inc.; And M. B. F. vs. Florida Commission On Human Relations Status: Closed DOAH Final Order on Monday, June 11, 2012.

Summary: Forms used by FCHR in processing housing discrimination cases do not consitute unpromulgated rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITIZENS FOR PETS IN CONDOS, )

INC.; AND M. B. F. , )

)

Petitioners , )

)

vs. ) Case No. 11 - 639 8RU

)

FLORIDA COMMISSION ON HUMAN )

RELATIONS , )

)

Respondent . )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case on

April 24, 2012, in Tallahassee, Florida, before Administrative

Law Judge Jessica E. Varn of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Marcy I. L aHart, Esquire

Marcy I. LaHart, P.A.

4804 SW 45th Street

Gainesville, Florida 32608

Byron Flagg, Esquire

Post Office Box 12013

Gainesville, Florida 326 04

For Respondent: John Chaves, Esquire

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

The issues in this case are: (1) whether three forms used by

the Florida Commission on Human Relations are unpromulgated

rules; (2) whether Petitioners, M.B.F. and Citizen s for Pets in

Condos , Inc., are substantially affected by the forms they seek

to challenge as unpro mulgated rules; and (3) whether, if

Petitioners prevail, they are entitled to attorney Ó s fees and

costs pursuant to section 120.595(4), Florida Statutes (2011). 1/

PRELIMINARY STATEMENT

Petitioners filed a Petition to Determine Invalidity of

Administrative Rules on December 14, 2011. Petitioners alleged

that three forms used by the Florida Commission on Human

Relations (FCHR) constitute unpromulgated rules, in violation of

section 120.54(1)(a). Petitioners also alleged that the forms

were invalid because t hey violated the Federal and Florida Fair

Housing Acts codified at 42 U.S.C. s ections 3601 - 3619, and

s ections 760.20 - 760.47, Florida Statutes, respectively. On

December 21, 2011, Petitioners filed a Request for Official

Recognition, requesting that offici al recognition be taken of a

Charge of Discrimination filed with the Department of Housing and

Urban Development, a Joint Statement of the Department of Housing

and Urban Development and the Department of Justice, and a Final

Rule adopted by the Department of Housing and Urban Development

in October, 2008. An order dated January 11, 2012, denied the

Motion for Official Recognition, explaining that the documents

were irrelevant to this proceeding because the sole issue to be

decided was whether the three fo rms used by FCHR were rules by

definition, and if so, whether their existence violated section

120.54(1)(a).

On December 21, 2011, Petitioners filed a M otion for S ummary

Final Order, which was opposed by FCHR. On December 29, 2011,

FCHR fil ed a m otion t o d ismiss, which was opposed by Petitioners.

Both m otions were denied.

A hearing was originally scheduled for January 10, 2012.

Based on agreement of the parties, the hearing was rescheduled

twice; the first time the hearing was rescheduled for

February 13, 2012, and the second time the hearing was

rescheduled for April 24, 2012.

At the final hearing, Petitioners presented the testimony of

M.B.F. and Marcy LaHart; Petitioners Ó Exhibits A - G and J - P were

admitted into evidence. Respondents presented the t estimony of

Larry Kranert, Lisa Sutherland, Cole Kekelis, and Cheyanne

Costilla; Respondent s Ó Exhibits 1 - 6 were admitted into evidence.

An unopposed motion to strike M.B.F. Ó s testimony was granted

during the final hearing. A two - volume Transcript of the hearing

was filed on May 9, 2012. The parties filed Proposed Final

Orders on May 21, 2012, which were considered in preparation of

this Final Order.

FINDING S OF FACT

The Parties

1. Petitioner Citizens for Pets in Condos, Inc., (CPC), is

a not - for - profit corporation, dedicated to the education of the

public about the health benefits of l iving with companion

animals, with an emphasis on help ing individuals change or obtain

a waiver from no - pet policies that restrict housing opportunities

fo r individuals wit h pets. CPC seeks to educate individuals who

may benefit from companion animals regarding their housing

rights.

2. CPC works to ensure equal housing opportuni ties f o r

individuals with disabilities that are benefitted by living with

assistive animals . CP C helps those individuals acquire waivers

based on their disability, where the housing entity has a no - pet

policy.

3. CPC Ó s resources are scarce . These resources are

diverted, and CPC Ó s organizational mission has been frustrated ,

when individuals are sen t the FCHR forms at issue and CPC is

asked to assist these individuals through the housing

discrimination process with FCHR. CPC has had to spend resources

to educate individuals over their privacy rights, and ensure that

complainants understand the use o f the FCHR forms.

4. On August 17, 2011, Petitioner M.B.F. filed a housing

discrimination complaint with FCHR. The forms at issue in the

present case were sent to M.B.F. ; he did not execute the FCHR

forms . On September 29, 2011, a no cause determination was

issued by FCHR. It stated:

Complainant failed to return the signed

Authorization to Release Medical Information

so that a Medical Certification Form could be

submitted by his doctor. Therefore, it could

not be established that Complainant belongs

to a class of persons whom the Fair Housing

Act protects from lawful discrimination,

based on handicap.

Respondent provided a copy of

correspondence from Nancy Lee Greenfield,

M.D., stating Complainant has a [redacted

medical diagnosis]. Dr. Greenfield s tated it

is important for Complainant to always have

his service dog, Jake, available for him.

Dr. Greenfield Ó s letter did not state what

major life functions were substantially

limited by Complainant Ó s disability.

Although Respondent knew or should have known

that Complainant had a disability, Respondent

did not know or should not have known that

Complainant was a disabled person within the

meaning of the Act.

5. On October 20, 2011, FCHR issued a Notice of

Determination of No Cause to M.F.K.

6. FCHR is the Florida enforcing agency for the Fair

Housing Act.

The Forms

7. FCHR sends, to every individual who has filed a housing

discrimination case, two forms. A cover letter that comes with

the two forms states:

Dear ______,

Attached is a medical rele ase form.

Please complete this form with the contact

information of the doctor who treats you for

your disability. Then sign and date the

form. Please return it to our office with

your Diary of Events and supporting

documentation. We need this medical r elease

form so that we can send a medical

certification form to your treating doctor in

order to verify that you are disabled within

the meaning of the Fair Housing Act.

Also attached is an Authorization for

the Use and Disclosure of Protected Health

Info rmation. Please complete this form and

return it to our office with your Diary of

Events and supporting documentation.

8. The first form, titled Ð Authorization to Release Medical

Information , Ñ releases Ð medical records and any medical

certification requ ired for my Disability status with reference to

my Comp laint of Housing Discrimination Ñ to FCHR.

9. The second form, titled Ð Authorization for the Use and

Disclosure of Protected Health Information, Ñ gives FCHR

permission to share health information which substantiates the

Complainant Ó s medical condition relating to a claim of

discrimination with third parties listed by a Complainant. It

also states that refusal to sign the authorization will not

affect the Complainant Ó s ability to obtain treatment, payme nt or

eligibility for benefits.

10. The third form is one sent to medical providers, and

can only be sent if the first form sent to the Complainant is

signed. This third form is titled, Ð Medical Certification Form. Ñ

It explains to the provider that the Complainant, a patient of

the provider, has requested a housing accommodation. It goes on

to state:

In order to consider whether the request

is reasonable, it is necessary that we have

the following information from you as the

physician who treats Complai nant.

The Florida and Federal Fair Housing

Acts define Ð disability Ñ with respect to a

person as a physical or mental impairment

that substantially limits one or more major

life activities; a record of such an

impairment; or being regarded as having such

a n impairment.

The form then defines physical and mental impairments, and

defines Ð major life activities Ñ as functions such as caring for

one Ó s self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working. The form t hen asks a

series of seven questions:

1. Are you the Complainant Ó s treating

medical professional with knowledge of

Complainant Ó s medical condition and history?

_______YES _______NO

2. Does the Complainant have a physical

or mental impairment as de scribed above?

_______YES _______NO

3. What is the expected duration of the

impairment?

_______PERMANENT ________TEMPORARY

4. Does the impairment substantially

limit one or more of the Complainant Ó s major

life activities?

_______YES __ _____NO

If yes, please indicate which major life

activity is affected and describe how it

affects Complainant. Check all that apply.

_____ Breathing:

________________________________________

________________________________________

_____ Caring for Onesel f:

________________________________________

________________________________________

_____Concentrating:

________________________________________

________________________________________

_____Hearing:

________________________________________

______________ __________________________

_____ Interacting with Others:

________________________________________

________________________________________

_____Learning:

________________________________________

________________________________________

_____Lifting:

______ __________________________________

________________________________________

_____Performing Manual Tasks:

________________________________________

________________________________________

_____Reaching:

________________________________________

____________ ____________________________

_____Seeing:

________________________________________

________________________________________

_____Sitting:

________________________________________

________________________________________

_____Sleeping:

_____________________ ___________________

________________________________________

_____Standing:

________________________________________

________________________________________

_____Walking:

________________________________________

________________________________________

__ ___Working:

________________________________________

________________________________________

_____ Other:

________________________________________

________________________________________

5. In your professional, medical

opinion, is the above - described m odification

or accommodation necessary , in order for

Complainant to have an equal opportunity to

use and enjoy a dwelling as a person without

a disability?

______YES ______NO

If yes, please describe how the

requested modification or accommodation

le ssens the effects of Complainant Ó s ability

to function.

________________________________________

________________________________________

6. Would you be willing to provide a

deposition regarding your treatment of

Complainant and your medical opinion

con cerning Complainant Ó s disability?

______YES ______NO

If no, please explain why.

________________________________________

________________________________________

7. Would you be willing to testify in

court regarding your treatment of Complainant

and your medical opinion concerning

Complainant Ó s disability?

_____ _ YES _____NO

If no, please explain why.

________________________________________

________________________________________

I swear under penalty of perjury that

the above statements are true.

[Signature and date lines]

11. Each housing discrimination complaint filed with FCHR

is assigned to an FCHR investigator. Prior to an investigator Ó s

reviewing the file, the two forms are generated by the Ð intake Ñ

process , and automatically se nt to every complainant in a housing

discrimination case.

12. Although these forms are sent out in every housing

discrimination case, they are not used in every case by the

investigator assigned to each individual case. Each investigator

has discretion i n whether to use the forms. If the file contains

medical information that defines the disability and accommodation

needed, and answers all the necessary questions, than the forms

are not needed.

13. The forms are not mandatory; complainants are not

requi red to complete the forms in order to establish or verify

their disability claim. T hird - party verification of a

complainant Ó s disability and need fo r an accommodation is

necessary, and Complainants may establish their disability and

need for an accommodat ion through letters from their doctors,

licensed social workers, or psychologists.

14. The forms are sent with an offe r for mediation or

conciliation to both parties, so that the parties are aware that

during the course of the proceedings, the parties hav e a right to

request that the claim be mediated or conciliated by FCHR, at no

charge to the parties.

15. The failure to complete and return the forms is not

fatal to a complainant Ó s housing discrimination claim; the forms

exist simply to assist the compla inant in gathering the

information to establish the need for an accommodation.

16. Since the FCHR forms are optional, do not confer any

rights to those who use them, or penalize those who choose not to

use them, the forms do not constitute rules by defini tion.

Standing alone, the forms do not create rights, require

compliance , and do not have the effect of law.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. § 12 0.56(4), Fla. Stat.

18 . Petitioners initiated this proceeding pursuant to

section 120.56(4 )( a) and (b), which place the burden of proof on

Petitioners to prove that they have standing to bring this

challenge and the burden of proving that the challenged f orms

constitute rules that were required to be promulgated in

accordance with section 120.54. If Petitioners meet their burden

on these two items, then the burden shifts to FCHR, to prove that

rulemaking is not feasible or practicable. § 120.56(4)(b). T he

standard of proof is by a preponderance of the evidence.

§ 120.57(1)(k).

19 . In order to establish standing to challenge the forms

as unadopted rules, Petitioners must prove that they are

Ð substantially affected by [the challenged] agency statement[. ] Ñ

§ 120.56(4)(a). The Ð substantially affected Ñ test in section

120.56 is a two - part test: Petitioners must establish that (1)

the agency statement will result in a real or immedia te injury in

fact; and (2) the asserted interest is arguably within the Ð zone

of interest Ñ intended to be protected or regulated by the

statutory scheme at issue. Jacoby v. Fla. Bd. of Med. , 917 So.

2d 358, 360 (Fla. 1st DCA 2005).

20 . As to Petitioner M.B.F., his receipt of a no cause

determination, based in part on his fail ure to complete the FCHR

forms at issue, satisfies the first prong of the standing test.

The no cause determination constitutes a real or immediate injury

sustained by M.B.F. As to the second prong, M.B.F. Ó s asserted

interest, of acquiring a housing acco mmodation based on a

disability, is intended to be protected and regulated by FCHR,

which is responsible for ensuring that housing entities comply

with the Fair Housing Act.

21 . As to Petitioner Citizens for Pets in Condos, Inc., the

evidence established that the corporation Ó s resources are scarce

and have to be redirected when attempting to help individuals

obtain waivers to no - pet policies, specifically, having to

educate individuals as to their privacy rights and the use of the

FCHR forms. This redirect ion of resources, and the frustration of

its mission, satisfies the first prong of the standing test. As

to the second prong, CPC Ó s mission is to assist individuals who

would like to live with assistive animals, and often must acquire

a waiver of a no - pet policy in order to do so. A denial of a

waiver can lead those individuals to file a complaint alleging

housing discrimination before FCHR. CPC Ó s interest in assisting

individuals with housing complaints before FCHR was shown to be

within the zone of int erest sought to be protected by the Fair

Housing Act.

22 . Although Petitioners did demonstrate standing, they did

not meet their burden of proving that the FCHR forms are

unpromulgated rules.

23 . A Ð rule Ñ is an Ð agency statement of general

applicability that implements, interprets, or prescribes law or

policy or describes the procedure or practice requirements of an

agency and includes any form which imposes any requirement or

solicits any information not specifically required by statute or

existing rule . Ñ § 120.52(16) (emphasis added) . This

interpretation has been consistently interpreted to include only

Ð those statements which are intended by their own effect to

create rights, or to require compliance, or otherwise to have the

direct and consistent eff ect of law. Ñ Ag. for Health Care Admin.

v. Custom Mobility, Inc. , 995 So. 2d 984, 986 (Fla. 1st DCA

2008), ( quoting McDonald v. Dep Ó t. of Banking & Fin. , 346 So. 2d

569, 581 (Fla. 1st DCA 1977) ) (emphasis added).

24 . The FCHR forms are sent to every co mplainant in a

housing discrimination case filed with FCHR. However, the forms

are not required to be used; the forms are simply one manner in

which complainants can establish their disability, and their need

for a housing accommodation related to that di sability.

Complainants can provide this information without ever using the

forms.

2 5 . In M.B.F. Ó s case, the no cause determination issued by

FCHR was based only in part on his failure to file the forms; the

determination also stated that the letter from M.B.F. Ó s doctor ,

which was provided to the investigator , did not provide

sufficient information so as to satisfy the need to verify

disability and the need for a housing accommodation. FCHR

reviews all documentation submitted by complainants; a failure to

complete the forms is not fatal to a complainant Ó s discrimination

claim.

26 . The FCHR forms, standing alone, have no impact on

complainants Ó righ ts . The forms do not require compliance and do

not deny a complainant a cause determination if they are not

completed. They do not have the effect of law.

27 . Accordingly, the FCHR forms do not constitute

unpromulgated rules, and Petitioners are not entitled to recover

attorney Ó s fees and costs.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition to Determine Invalidity of

Administrative Rules is dismissed.

DONE AND ORDERED this 11th day of June , 2012 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law J udge

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 11th da y of June , 2012 .

ENDNOTE

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2011 codification.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tall ahassee, Florida 32301

[e-mail]

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

[e-mail]

Lawrence F. Kranert, Jr., General Counsel

Florida Commiss ion on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Sarah Juliet Purdy Stewart, Esquire

Florida Commission on Human Re lations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

s [e-mail]

Byron D. Flagg, Esquire

Post Office Box 12013

Gainesville, Florida 32604

[e-mail]

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency mainta ins its headquarters or where a party resides or

as otherwise provided by law.