12-002619 Arismaida Prado vs. Miami-Dade Board Of Commissioners Status: Closed Recommended Order on Monday, February 18, 2013.

Summary: Petitioner failed to prove that Respondent had committed a discriminatory housing practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARISMAIDA PRADO , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2619

)

MIAMI - DADE BOARD OF )

COMMISSIONERS , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to n otice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1/

before Jessica E. Varn, an administrative law judge of the

Division of Administrative Hearings (DOAH), on January 9, 2013,

by video teleconference a t sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Arismaida Prado, pro se

422 Southwest 78th Court

Miami, Florida 33144

For Respondent: Stephanie E. Farrell, Esquire

Gen ovese Joblove and Battista, P.A.

44th Floor

100 Southeast 2nd Street

Miami, Florida 33131

Terrence A. Smith, Esquire

Miami - Dade Cou nty Attorney ' s Office

Suite 2810

111 Northwest 1st Street

Miami, Florida 33128

Michael R. Band, Esquire

Michael R. Band, P.A.

1200 Alfred I. DuPont Building

169 East Flagler Street

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed a discriminatory act based on

Petitioner ' s disability, in violation of the Fai r Housing Act.

PRELIMINARY STATEMENT

On July 5, 2012, the Florida Commission on Human Relations

(Commission) issued a Notice of Determination finding no cause to

believe that Respondent, Miami - Dade Board of County

Commissioners, committed a discriminatory housing practice in

violation of the Fair Housing Act, against Petit ioner, Ms. Prado.

On August 1 , 2012, Ms. Prado filed a Petition for Relief alleging

that Respondent had engaged in a discriminatory housing practice

based on disability. Specifically, sh e wrote :

My rights have been violated because the

Board of Commissioners did not take into

consideration my medical disabilities

including my need for using medical equipment

to reduce the previous benefits I was

receiving. During the interview process I

was not allowed to support the above

mentioned conditions and my n eed to keep two

bedrooms house [sic] to keep the aid devices

ordered for my doctors.

I can prove that I am a mentally disabled

person who suffers from several physical

illness [ sic ] , which lead me to require the

use of a Foley bed, an oxygen machine, an

electric bicycle, an aerosol machine, a

treadmill, and a roller walker. I cannot

keep all the aid devices in one room. I use

the hospital bed when I am in pain crisis

with muscles [sic] rig idity and limited

mobility.

On August 7, 2012, the Florida Commission on Human Relations

transmitted the Petition for Relief to the Division of

Administrative Hearings to assign an administrative law judge to

conduct the necessary proceedings. The hearin g was initially

scheduled for October 19, 2012. On October 5, 2012, Respondent

filed a Motion for Continuance, which was granted. The hearing

was rescheduled for January 9, 2013.

At the hearing, Ms. Prado testified on her own behalf, and

presented t he testimony of her daughter, Noylan Gonzalez.

Ms. Prado introduced into evidence Petitioner ' s Exhibits 1, 2,

and 3. Respondent presented the testimony of Donna Gunther,

Edilia Diaz, and Barry Klein; Respondent Exhibits D - 2, D - 3, D - 4,

D - 5, D - 6, and D - 7 were introduced into evidence.

Notwithstanding the requirements of section 120.57(1)(g),

Florida Statutes, and Florida Administrative Code Rule 28 -

106.214, the Commission has ceased providing a court reporter to

preserve the testimony at a final hearing. The parties were

advised, in the Notice of Hearing issued on October 10, 2012,

that if the parties did not provide a court reporter, each party

was responsible for providing a notary public to swear in all

witnesses who intended to testify. Neither party provided a

court reporter or a notary public; both parties agreed to have

the undersigned swear in the witnesses via video teleconference.

Both parties filed Proposed Recommended Orders, which were

considered in the preparation of this Recommended Order.

FINDING S OF FACT

1. Ms. Prado rented an apartment using a Housing Choice

Voucher in Miami, Florida.

2. Florida Quadel entered into a contract with Miami - Dade

County in 2009. Florida Quadel , pursuant to this contract,

administers the Housing Choice Vou cher Program on behalf of the

County.

3. During a routine quality control review of the program ' s

files, Ms. Prado ' s file was randomly selected for a more in - depth

quality control review.

4. A review of the file revealed that Ms. Prado was a

single indiv idual residing in a two - bedroom apartment, utilizing

a voucher that allowed for a two - bedroom unit.

5. There was insufficient documentation in the file to

justify the need for a two - bedroom unit; therefore, paperwork

requesting a reasonable accommodation was forwarded to Ms. Prado

for completion. The paperwork required that Ms. Prado ' s health

care provider indicate the medical necessity for any reasonable

accommodation being requested.

6. Ms. Prado ' s health care physician did not provide a

statement of medical necessity for the second bedroom; therefore,

Quadel made numerous additional requests for the physician to

provide the necessary statement. The physician never made such a

statement.

7. Quadel then conducted an on - site inspection of the

dwelling . During this inspection, Ms. Prado told the inspector

that the second bedroom was used for guests. There was no

indication during the inspection that a second bedroom was for

housing Ms. Prado ' s medical equipment.

8. Ms. Prado ' s voucher was amended fro m a two - bedroom

voucher, to a one - bedroom voucher. This amendment did not

require that Ms. Prado vacate the two - bedroom unit , but it did

reduce the amount of subsidy Ms. Prado received.

9. Ms. Prado filed a grievance as to this determination.

At the gri evance committee meeting, Ms. Prado stated that she

slept in one bedroom, and the other bedroom was used when her

daughter and husband visited and spent the night.

10. Based on the absence of any documentation indicating

the medical necessity of a second bedroom, coupled with

Ms. Prado ' s own statements to Quadel, the grievance was denied.

Ms. Prado then filed a complaint of discrimination with the

Florida Commission on Human Relations.

11. Ms. Prado presented no evidence of discrimination in

the housing decision. Quadel ' s decision to amend the voucher

from a two - bedroom unit to a one - bedroom unit was based on

legitimate, non - discriminatory reasons.

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

13. Petitioners have alleged that Respondents violated the

Florida Fair Housing Act, sections 760.20 - 760.37, Florida

Statutes. Section 760.23(2), prohibits discrimination against

p ersons, in the terms, conditions, or privileges of rental of a

dwelling, or in the provision of services or facilities in

connection with rental of a dwelling, bec ause of that person ' s

handicap .

14. In all respects material here, the language in section

760.23(2) is identical to that in Title 42, section 3604(b),

United States Code, which is part of the Federal Fair Housing

Act, as amended. " If a Florida statute is modeled after a

federal law on the same subject, the Florida statute will take on

the sam e construction as placed on its federal prototype, insofar

as such interpretation is harmonious with the spirit and policy

of the Florida Legislation. " See Brand v. Florida Power Corp. ,

633 So. 2d 504, 509 - 510 (Fla. 1st DCA 1994).

15. Ms. Prado had the ultimate burden of proving that a

discriminatory housing practice was committed by Respondent,

based on Ms. Prado ' s disability. See § 760.34(5), Fla. Stat. In

the absence of direct evidence of intentional discrimination, of

which there is none in this re cord, a three Ï part analysis,

derived from McDonnell - Douglas Corp. v. Green , 411 U.S. 792

(1973), is used:

First, the plaintiff has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if the plaintiff suff iciently establishes a

prima facie case, the burden shifts to the

defendant to articulate some legitimate, non -

discriminatory 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 in fact mere

pretext.

See U.S. Dep ' t of Hous. and Urban Dev. v. Blackwell , 908 F.2d

864, 872 (11th Cir. 1990)( quoting Pollitt v. Bramel , 669 F. Supp.

172, 175 (S.D. Ohio 1987)).

16 . Ms. Prado m ust establish a prima facie case, and would

still retain the ultimate burden of persuasion conc erning the

discrimination claim a fter showing a prima facie case by

presenting evidence that any legitimate, non - discriminatory

reason put forth by Respondent wa s pre - textual.

17. Ms. Prado could have presented circumstantial evidence

of discrimination in the form of proof that Respondent treated

persons outside of the protected class, who were otherwise

similarly situated, more favorably than Ms. Prado was treat ed.

U.S. Dep ' t. of Hous. & Urban Dev. v. Blackwell , 908 F. 2d 864, 871

(11th Cir. 1990).

18. To establish housing discrimination through

circumstantial evidence, Ms. Prado must establish that

(1) she belong to a protected class; (2) she was qualified to

r eside in housing; (3) she was denied housing or treated

differently than others who were not in the protected class.

Failure to establish a prima facie case of discrimination ends

the inquiry. See Ratliff v. State , 666 So. 2d 1008, 1013

n.7 (Fla. 1st DC A 1996), aff ' d , 679 So. 2d 1183 (Fla. 1996).

19. Ms. Prado does belong to a protected class as a

disabled person, and there was no dispute that she was qualified

to reside in housing. Ms. Prado presented no evidence, however,

that she was treated di fferently than any other person.

Ms. Prado, therefore, failed to establish a prima facie case of

housing discrimination.

20. In addition, Respondent proved that the decision to

amend Ms. Prado ' s housing voucher was based on legitimate, non -

discrimi natory reasons.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commiss ion on Human

Relations enter a final order determining that Respondent did not

commit a discriminatory housing practice based on Ms. Prado ' s

disability.

DONE AND ENTERED this 18 th day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 18 th day of February , 2013 .

ENDNOTE

1/ Unless otherwise noted , all references to the Florida Statutes

are to the 2012 version.

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Terrence A. Smith, Esquire

Miami - Dade County Attorney ' s Office

Suite 2810

111 Northwest 1st Street

Miami, Florida 33128

Arismaida Prado

422 Southwest 78th Court

Miami, Florida 33144

Stephanie E. Farrell, Esquire

Genovese Joblove and Battista, P.A.

44th Floor

100 Southeast 2nd Street

Miami, Florida 33131

Michael R. Band, Esquire

Michael R. Band, P.A.

1200 Alfred I. DuPont Building

169 East Flagler Street

Miami, Florida 33131

Cheyanne Costilla, Interim General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

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 t hat

will issue the Final Order in this case.