14-006140 Peggy Troiano vs. Hernando County Housing Authority Status: Closed Recommended Order on Friday, May 22, 2015.

Summary: Petitioner failed to prove her claim of housing discrimination based upon her disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEGGY TROIANO,

Petitioner,

v s . Case No. 14 - 6140

HERNANDO COUNTY HOUSING

AUTHORITY,

Respondent .

________________________________/

RECOMMENDED ORDER

A final hearing was conducted in this case on February 13,

2015, in Brooksville, Florida, before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Peggy Troiano, pro se

15141 Pomp Parkway

Week i Wachee, Florida 34614

For Respondent: LaShawnda K. Jackson, Esquire

Rumberger, Kirk & Caldwell, P.A.

300 South Orange Avenue, Suite 1400

Orlando, Florida 32835

STATEMENT OF THE ISSUE

Whether the Hernando County Housi ng Authority (Respondent)

unlawfully engaged in a discriminatory housing practice against

Peggy Troiano (Petitioner) on the basis of her disability by

refusing to provide Section 8 funding for a housing unit being

occupied by Petitioner and the housing un it ' s owner,

PetitionerÓs daughter , Julia Williams .

PRELIMINARY STATEMENT

On October 8, 2014, Petitioner filed a Housing

Discrimination Complaint (C omplaint) against the Hernando County

Housing Authority with the U.S. Department of Urban Develo pment

(HUD ). Thereafter, the Complaint was forwarded to the Florida

Commiss ion on Human Rights (Commission) for investigation.

According to the C omplaint, on August 21, 2014, Petitioner was

issued a notice stating that her Housing Assistan ce Contract

under the Sec tion 8 program will be terminated, e ffective

September 30, 2014, because the "unit is occupied by its owner

or by a person wit h interest in the unit." The C omplaint

further states that on September 8, 2014, Petitioner submitted a

reasonable accommodation request to have her voucher reinstated

to her current residence [ owned by her daughter ] until

Petitioner could locate a home that would meet her medical

needs . The Complaint alleges that Respondent discriminated

against Petitioner on the basis of her disability .

Following completion of its investigation, the Commission

issued a Determination dated November 24, 2014 , finding "that

there is not reasonable cause to believe that a discriminatory

housing practice occurred." On December 4, 2014, the Commission

mailed Petitioner a Notice of Determination of No Cause (Notice)

on the Complaint noting that the Commission and HUD "administer

the Fair Housing Act . . . [and that] [b]ased on the evidence

obtained during the investigation, the [Commission] ha s

determined that reasonable cause does not exist to believe that

a discriminatory housing practice has occurred." The Notice

referenced the Florida Fair Housing Act, as well as Florida

Administ rative Code Rule 60Y - 8.001 and c hapter 60Y - 4, and

advised Pet itioner of her right to file a petition for r elief

for an administrative proceeding on her Complaint within 3 0 days

from the date of service of the Notice, or a civil action within

two year s from the alleged discriminatory housing practice .

Petitioner tim ely filed a petition ( Petition for Relief ) with

the Commission on the CommissionÓs form reiterating the

allegations of her Complaint.

On December 29 , 2014, the Commission filed a Transmittal of

Petition with the Division of Administrative Hearings (DOAH) f or

assignment of an administrative law judge to conduct an

administrative hearing on PetitionerÓs Petition for Relief .

At the administrative hearing held on F ebruary 13, 2015 ,

with the help of her daughter , Julia Williams, Petitioner

appeared by phone and presented the testimony of one witness,

testified on her own behalf , and offered 18 pre - marked exhibits

received into evidence as Exhibits P - A, P - D, P - F , P - H through

P - L, P - N, P - Q, P - S , P - T , P - Y, and P - BB through P - FF . Respondent

presented the testimony of two witnesses and offered 33 pre -

marked exhibits received into evidence as Exhibits R - A through

R - GG . In addition, Exhibit Joint - 1 was received into evidence.

All exhibits were received into evidence with the caveat that,

although hearsay in the exhi bits could be used as corroborative

evidence, hearsay, alone, could not be relied upon to support a

finding of fact.

The hearing concluded on February 13, 2015 . The

proceeding s were recorded and a transcript was ordered. The

parties were given 30 days fr om the filing of the transcript

within which to file their proposed recommended orders. A two -

volume Transcript of the proceeding was filed March 13, 2014 .

The parties timely filed their respective Proposed Recommended

Orders on A pril 13, 2015, both of which have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all relevant times, Petitioner was an individual

participant in a tenant - based voucher arrangement under the

Section 8 Housing Program funded by HUD and administered by

Respondent .

2. Petitioner is an individual claiming that she is

disabled because of a toxic injury that requires her to live

isolated in a non - toxic environment. Respondent does not

contest PetitionerÓs claim of disabil ity and it is , therefore ,

found that Petitioner is disabled or handicapped wi thin the

meaning of applicable law.

3. Julia Williams is PetitionerÓs daughter who, at a ll

relevant times, owned the house located at 15141 Pomp Parkway,

Weeki Wachee, Hernando C ounty, Florida (Ð15141 Pomp Parkway

unitÑ). Ms. Williams is specially trained to deal with toxic

injury and is paid through a federally - funded, consumer - directed

program to provide assistance to Petitioner.

4. Respon dent is a public housing agency t hat administers

the Section 8 Housing Program as part of the Housing and

Community Development Act of 1974, which recodified the U.S.

Housing Act of 1937. As a recipient of funding from HUD for its

Section 8 Program, Respondent is required to comply with HUD

Section 8 regulations, as well as all Federal, State , and local

fair housing laws and regulations.

5. In order to receive funding from HUD, Respondent is

required to sign an annual contributions contract (ACC) wherein

it agrees to follow the Code of Fe deral Regulations ( C.F.R. ) .

If Respondent does not follow the C.F.R. or HUDÓs guidelines,

HUD has the right to terminate RespondentÓs Section 8 program

funding . In addition, HUD could make Respondent repay any

funding used for ineligible housing .

6. On March 17, 2014, during the annual reexamination for

her Section 8 v oucher, Petitioner signed, under the penalty of

perjury, a s ummary r eport which identified her as the only

household member permitted to live in any unit under her Section

8 v oucher.

7. A round the time of the annual reexamination, Petitioner

was living at a unit on Philatelic Drive with plans to move into

and rent a unit at 15141 Pomp Parkway. The Pomp Parkway unit

was owned, but not being occupied , by PetitionerÓs daughter

Julia William s.

8. In April of 2014, Petitioner asked Respondent for

permission to rent the unit from her daughter . Petitioner and

her daughter spoke with RespondentÓs officials about her

request.

9. Generally, a public housing agency , such as Respondent ,

cannot approve a unit for participation in the Section 8 program

if it is owned by a parent, child, grandparent, grandchild,

sister, or brother of any member of the participantÓs family.

See 24 C . F . R . § 982.306 . Respondent, however, ultimately

approved PetitionerÓs rental of the Pomp Parkway unit under the

Section 8 program, even though it was owned by PetitionerÓs

daughter , pursuant to a limited exception under 24 C.F.R.

§ 982.306(d) , which provides an express exception to the rule if

Ðthe [public housi ng agency] determines that approving the unit

would provide reasonable accommodation for a family member who

is a person with disabilities.Ñ 24 C . F . R . § 982.306(d) .

10. Also , during Ap ril of 2014, Petitioner and

Ms. Williams were working on constructing a caregiver suite for

the 15141 Pomp Parkway unit and had discussions with

RespondentÓs staff about it.

11. There are documents purportedly created during this

time frame summarizing several c onversations between Respondent,

Petitioner , and Ms. Williams. The documents state that

RespondentÓs officials had a conversation with Petitioner and

her daughter wherein they discussed the requirements for a live -

in aide and that Petitioner and Ms. Williams were warned that

Ms. Williams could neve r live in the 15141 Pomp Parkway unit.

Respondent also contends that Petitioner and Ms. Williams were

warned that , even if Ms. Williams was approved as a live - in

aide, Ms. Williams could not live in the 15141 Pomp Parkway

unit .

12. On the other hand, Pet itioner contends that the

alleged conversations warning her that her daughter could not

reside in the home did not occur during this time frame , and

that she and her daughter continued to renovate the house to

specifications suitable to accommodate Petitio ner's disability

with the expectation that her daughter would ultimately be able

to reside in the home after renovations were complete.

13. Upon consideration of the credibility of the witnesses

and timing of the purported document s , t he undersigned finds

that the testimony and documents regarding these alleged April

conversations are unreliable and do not support a finding that

the conversations and warnings actually occurred during the

April time frame. The evidence is also insufficient to support

Petit ioner's contention that Respondent was somehow responsible

for Petitioner's expectation that her daughter would be able to

both act as Petitioner's caregiver and live in the home while

Petitioner was receiving rent vouchers under the Section 8

program.

1 4. Petitioner was the only person that Respondent

approved to live in the 15141 Pomp Parkway unit under her

Section 8 voucher . In May of 2014, Petitione rÓs daughter

entered into a one - year r esidential lease with Petitioner and a

Housing Assistance Payment Contract (HAP Contract) with

Respondent. According to the HAP Contract, Petitioner was the

only person able to reside in the 15141 Pomp Parkway unit

without the express, written consent of Respondent. At the time

the HAP Contract was signed, Peti tioner advised Respondent that

she would be the o nly person living in the unit. Ms. Williams,

as the landlord, signed a check cashing a greement with

Respondent wherein she agreed Petitioner would be the only

person occupying the 15141 Pomp Parkway unit. Also,

PetitionerÓs i ncome v erification s ummary r eport provides that

Petitioner is the only person allowed to live in a unit covered

by her Section 8 voucher.

15. In early May of 2014, Ms. Williams moved into the

1 5141 Pomp Parkway unit without notice to R espondent.

16. Petitioner has never received written approval from

Respondent to have Ms. Williams live and occupy the 15141 Pomp

Parkway unit under the Section 8 voucher program.

17. By letter dated June 17, 2014, Petitioner submitted an

HCHA Live - in Aide Request Verification Form, along with letters

from her doctor . Petitioner also requested that her daughter

Julia Williams serve as her live - in aide .

18. Approval for a live - in aide is a different process

than the approval process to have someone added to the

household. While Petitioner's request for a live - in aide stated

that Petitioner was living at 15141 Pomp Parkway, it did not

mention that Petitioner's daughter was the owne r of the

dwelling, nor did it include a specific req uest that

Ms. Williams be allowed to move into and occupy the 15141 Pomp

Parkway unit that she owned .

19. Upon receipt of the written request for a live - in aide

by Petitioner, Respondent began its inves tigation to determine

whether Petitioner met the qualifications for a live - in aide and

whether Ms. Williams met the qualifications to serve as a live -

in aide.

20. Respondent has implemented 24 C.F.R. § 5.403 into its

written policy regarding live - in aides , which provides :

LIVE - IN ATTENDANTS

• A family may include a live - in aide

provided that such live - in aide:

• Is determined by the [ public housing

agency ] to be essential to the care and

well - being of an elderly person, a

nearly - elderly person, or a pers on with

disabilities,

• Is not obligated for the support of the

person(s), and

• Would not be living in the unit except

to provide care for the person(s).

21. Under the C.F.R. , a public housing agency is required

to approve a live - in aide , if needed , as a reasonable

accommodation for an elderly or disabled person. 24 C . F . R .

§ 982.316 (ÐThe PHA must approve a live - in - aide if needed as a

reasonable accommodationÑ to a family with an elderly or

disabled person.).

22. By letter dated June 27, 2014, Respondent notified

Petitioner of the approval of her request for her daughter to

serve as her live - in aide . Although Respondent was aware that a

home occupied by an owner was not eligible for a Section 8

voucher at the time it gave its permission for Petitioner's

daughter to serve as Petitioner's live - in aide, the letter did

not speak to that issue. Rather, t he June 27, 2014, letter ,

signed by Donald Singer, stated:

Pursuant to your letter dated June 17, 2014

requesting a r easonable accommodation for a

liv e in aide. Your letter also ask [sic]

that the liv e in aide be your daughter,

Julia Williams based upon her qualifications

as presented.

After reviewing the U.S. Department of

Housing and Urban Development's (HUD)

regulations for Live - in Aides and the

Housing Authority's Section 8 Program

Administrative Plan for Live in Aides our

office has determined that your daughter,

Julia Williams meets the program

qualification(s) to act as your Live in

Aide. Therefore our of fice is approving

Julia E. Williams as your Live in Aide

effective immediately.

Should you have any questions regarding this

action/letter please contact our office at

352 - 754 - 4160.

23. By email on August 11 , 2014, Petitioner notified

Mr. Singer that she and her live - in aide , Julia Williams ,

intended to live at the 15141 Pomp Parkway unit.

24. On August 11, 2014, PetitionerÓs daughter Julia

Williams was still the owner of the 15141 Pomp Parkway unit .

25. Under 24 C.F.R. § 892.352, a unit being occu pied by

its owner is deemed ÐineligibleÑ and a public housing agency is

prohibited from providing funding for such unit. The C.F.R.

provides a limited exception for shared housing that allows an

owner to occupy a unit funded by Section 8 . U nder that limi ted

exception, however, the Section 8 participant cannot be a blood

relative of the resident owner. 24 C . F . R . § 982.615(b)( 3).

26. Based upon the prohibition under the C.F.R. which

forbids a public housing agency from funding a unit occupied by

an owner who is a blood relative of the Section 8 participant ,

by letters dated August 22, 2014 , Respond ent notified Petitioner

and Ms. Williams that the 15141 Pomp Parkway unit was

Ðineligible housingÑ that could not be f unded . The letters also

informed Petition er that Julia Williams ' approval as a live - in

aide did not supersede HUD regulations and that , because Julia

Williams was occupying the unit, Respondent was terminating the

HAP contr act effective September 30, 2014 .

27. The only reason Respondent terminat ed the funding for

the 15141 Pomp Parkway unit was because the C.F.R. does not

allow Respondent to continue funding a unit occupied by its

owner.

28. Prior to the August 22nd letters, Respondent was

advised by HUD that Respondent did not have any discreti on in

funding Ðineligible housing . Ñ HUD approved the draft of the

August 2 2nd letters.

29. The evidence does not support a finding that either

Respondent or HUD waived or should otherwise be prevented from

applying the limitations and requirements of t he law that a

Section 8 participant cannot be a blood relative of the resident

owner .

30. Respondent would have been willing to continue

PetitionerÓs housing assistance as long as Petitioner met

program requirements and the housing was deemed eligible housing

under the C.F.R. thro ugh the issuance of a new three - bedroom

voucher for a different unit , or by having Petitioner live in

the 15141 Pomp Parkway unit without Ms. Williams both owning and

occupying the unit.

31. By letter dated August 27, 2014, Respondent provided

Petitioner with a new Section 8 voucher and voucher packet

information so that Petitioner could start searching for a new

rental unit where Ms. Williams could continue to serve as

PetitionerÓs live - in aide under PetitionerÓs Section 8 voucher .

The new voucher was required to be returned to Respondent by

September 30, 2014 .

32. There was no testimony that Petit ioner returned the

new Section 8 voucher to Respondent by September 30, 2014 , or

that Ms. Williams moved out of 15141 Pomp Parkway by that date.

33. On September 4, 2014, before the funding was

terminated for the 15141 Pomp Parkway unit, Petitioner filed a

complaint for discrimination.

34. Pe titioner emailed a signed three - bedroom voucher on

Oct ober 30, 2014, a month after funding under the new voucher

expired, for the rental of the 15141 Pomp Par kway unit that had

already been deemed ineligible housing as defined by 24 C.F.R.

§ 982.316 .

35. That voucher is not valid and the facts fail to

support a finding that RespondentÓs refusal to allow Petitioner

to participate in the Section 8 voucher program while occupying

a unit owned a nd occupied by her daughter was because of

PetitionerÓs disability.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760.20 - 760.37, Fla.

Stat. ; see also Fla. Admin. Code R. 60Y - 4.016 and 60Y - 8.001. 1/

37. Although Petitioner's allegations are couched in terms

of federal law , 2/ the Notice of the Commission's determinations

advis ing Petitioner of her right to file a p etition for r elief

reference the Act, as well as Florida Administ rative Code Rule

60Y - 8.001 and c hapter 60Y - 4 , which invoke the undersignedÓs

jurisdiction for an administrative hearing under the Act . The

analysis , whether un der the Act or t he federal fair housing act

(FHA) , 3 / is the same. Bhogaita v. Alta monte Heights Condo.

AssÓn , 765 F.3d 1277, 1285 (11 th Cir. 2014)(ÐThe FHA and the

Florida Fair Housing Act are substantively identical, and

therefore the same legal analysis applies to each.Ñ).

38. F loridaÓs Fair Housing Act ( the Act) is codified in

sections 760.20 through 760.37, Florida Statutes.

39. Among other things, as i n the FHA , the Act makes

certain actions Ðdiscriminatory housing practices . Ñ Under the

Act, following an administrative hearing, the Commission has

authority to make findings as to whether a Ðdiscriminatory

housing practiceÑ has occurred. If such a finding is made, the

Act further authorizes the Commission to issue an order

Ðprohi biting the pra cticeÑ and providing Ðaffirmative relief

from the effects of the practice, including quantifiable damages

and reasonable attorneyÓs fees and costs.Ñ £ 760.35(3)(b), Fla.

Stat.

40. The Ðdiscriminatory housing practicesÑ prohibited by

the Act include those described in section 760.23(2), which

provides:

(2) It is unlawful to discriminate against

any person in terms, conditions, or

privileges of sale or rental of a dwelling,

or in the provision of services or

facilities in connection therewith, because

of r ace, color, national origin, sex,

handicap , familial status , or religion.

(emphasis added ) .

41. The language in section 760.23(2 ) is identical to the

prohibition in the federal Fair Housing Act (FHA), found at

42 U.S.C. § 3604(b) . Because section 760.23(2) is patterned

after a federal law on the same subject, Ðit [should] be

accorded the same construction as in federal courts to the

extent the construction is harmonious with the spirit of the

Florida legislation.Ñ Cf. , Winn - Dixie Stores, Inc. v. R eddick ,

954 So. 2d 723, 728 (Fla. 1st DCA)(discussing the same rule of

construction in the context of the Florida Civil Rights Act of

1992, §§ 760.01 - 760.11, Fla. Stat.), rev. denied , 967 So. 2d 198

(Fla. 2007 ).

42. Petitioner, as the party asserting the affirmative in

this proceeding , has the initial burden of proof. See Balino v.

DepÓ t of Health & Rehab. Services , 348 So. 2d 349 (Fla. So. 2d

349) .

43. Petitioner has the burden of establishing facts to

prove a prima facie case of discrimination. U.S. DepÓt of Hous.

and Urban Dev. v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990).

44. The three - part Ðburden of proofÑ pattern developed in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817

(1973), applies. Blackwell , 908 F.2d at 870. Under that test:

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some le gitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

Id. , citing Pollitt v. Bramel , 669 F. Supp. 172, 175 (S.D. Ohio

1987)(federal Fair Housing Act claim) .

45. Discrimination under the Act and the FHA can occur

upon Ða refusal to make reasonable accommodations in rules,

policies, practices , or services, when such accom modations may

be necessary to afford [a disabled person an] equal opportunity

to use and enjoy a dwelling.Ñ § 760.23(9)(b), Fla. Stat.;

42 U.S.C. § 3604(f)(3)(B). In proving an alleged refusal to

make a reasonable accommodation, Petitioner has the burden of

showing that a proposed accommodation is reasonable. See Loren

v. Sasser , 309 F. 3d 1296, 1302 (11th Cir. 2002). To prevail on

a failure to accommodate claim under either the Act or the FHA ,

Petitioner must establish that (1) s he is handicapped within the

meaning of the Act , (2) s he requested a reasonable

accommodation , (3) such accommodation was necessary to afford

her an opportunity to use and enjoy her dwelling, and

(4) Respondent refused to make the requested accommodation . See

Philippeaux v. Apt . Inv. a nd Mgmt. Co . , 598 Fed. Appx. 640, *6 -

*7 (11th Cir. 2015).

46. As explained by the Eleventh Circuit Court of Appeals

in Schwarz v. City of Treasure Island , 544 F.3d 1201, 1226 (11th

Cir. 2008):

The FHA's reasonable accommodation provision

requires only those accommodations that "may

be necessary . . . to a fford equal

opportunit y to use and enjoy a dwelling."

42 U.S.C. § 3604(f)(3)(B) (emphas e s added).

The word "equal" is a relative term that

requires a comparator to have meaning. In

this context, "equal opportunity" can only

mean that handicapped people must be

afforded the same (or "equal") opportunity

to use and enjoy a dwelling as non -

handicapped people, which occurs when

accommodations address the needs created by

the handicaps . If ac commodations go beyond

addressing these needs and start addressing

problems not caused by a person's handicap,

then the handicapped person would receive

not an "equal," but rather a better

opportunity to use and enjoy a dwelling, a

preference that the plai n language of this

statute cannot support.

47. A review of the testimony and exhibits received into

evidence, in light of the facts and law, demonstrates that

Petitioner failed to meet her burden in this case.

48. First, Petitioner's claim fails because applicable

regulations prohibit the use of a Section 8 housing voucher to

pay her rent for a unit being occupied by its owner.

49. Federal regulations pertaining to the tenant - based

program of Section 8 prohibit the rent al family from having any

interest in the dwelling unit. This prohibition states that

Ð[t]he family must not own or have any interest in the unit.Ñ

24 C.F.R. § 982.551(j) . A similar restriction is found at

24 C.F.R. § 982 . 352 , pertaining to eligibility of a housing

unit. Specifically, the regulation deems ineligible Ð[a] unit

occupied by its owner or by a person with any interest in the

dwelling unit.Ñ 24 C.F.R. § 982 . 352 (6).

50. Respondent has no authority to waive the rule

requirements or otherwise accommodate Petitioner who wishes to

receive assistance in a family owner - occupied unit. While the

Ðshared housingÑ provision of 24 C.F.R. § 982.615 permits a

Section 8 participant to share an owner - occupied unit, the

provision expressly provides Ð[a] n assisted person may not be

related by blood or marriage to a resident owner.Ñ 24 C.F.R.

§ 982.615(b)(3). Because Petitioner and Julia Williams are

blood relatives, the regulations do not provide a means for

Respondent to permit P etitioner to live in the 15141 Pomp

Parkway unit with owner Julia Williams, even as a live - in aide.

51. In addition , the evidence does not support a finding

that the accommodation requested by Petitioner is reaso nable.

Ð The Joint Statement of the Department of Housing and Urban

Development and the Department of Justice: Reasonable

Accommodat ions Under the Fair Housing Act Ñ provides that a

request for accommodation cannot require a Ðfundamental

alterationÑ of a public housing agencyÓs operation or an undue

financial or administrative burden.

52. Respondent ha s no discretion in complying with

24 C.F.R. § 982 . 352 (6). Under its ACC Contract with HUD ,

Respondent must comply with the C.F.R. Ós prohibition against

funding ÐineligibleÑ units. Responden t's failure to comply

could jeopardize federal funding of its Section 8 program .

53. Further , Petitioner is requesting an accommodation

that would put her in a better position than all of RespondentÓs

other Section 8 clients. Preferential treatment is not what a

reasonable accommodation is designed to do. See Philippeau x ,

598 Fed. Appx. 640 at *8 (where tenantÓs request would have put

him in a better position than other residents , the request is

not for a reasonable accommodation ).

54. Petitioner has also failed to establish that the

requested accommodation is necessary to afford Petitioner the

equal opportunity to use and enjoy R espondentÓs Section 8

p rogram. Before terminating funding for the 15141 Pomp Parkway

unit, Respo ndent issued Petitioner a three - bedroom Section 8

voucher for Petitioner to locate and rent a different unit that

was not owned and being occupied by Ms. Williams .

Alternatively, Ms. Williams could have move d out and continue d

to provide ser vices to Petitioner at the 15141 Pomp Parkway unit

for which Petitioner was receiving payment under the two - bedroom

voucher . Petitioner could also submit a request for a live - in

aide who did not own and could occupy the 15141 Pomp Parkway

unit under a three - bedroom voucher. Under any of those options,

Respondent was willing to provide Section 8 funding to

Petitioner without violating applicable regulations and its

contractual obligations to HUD.

55. In sum, Petitioner failed to prove he r claim of

discrimination 4 / based upon her disability. 5 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

ent er a final order dismissing the Complaint and Petition for

Relief.

DONE AND ENTERED the 22nd day of May, 2015, in Tallahassee,

Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of May , 2015.

ENDNOTES

1/ Unless otherwise indicated by context, citations to all

statutes, rules, and regulations are to current versions, the

substantive provisions of which have not changed since the

pertinent facts in this case.

2/ In particular, the Complaint alleges violations of

Ð[s]ections 804a, 804(f)(2), and 804(f)(3)(B) of Title VII I of

the Civil Rights Act of 1968 as amended by the Fair Housing Act

of 1988.Ñ The Complaint also references section 504 of the 1973

Rehabilitation Act.

3/ The FHA, enacted as Title VIII of the Civil Rights Act of

1968, amended by the Fair Housing Amendments Act of 1988, Pub.

L. No. 100 - 430, 102 Stat. 1619 ( 1988), is codified at 42 U.S.C.

§ 3601, et. seq.

4 / This conclusion is based upon an analysis under the Act and

pertinent case law under the FHA . Although beyond the scope of

an analysis under the Act , i n addition to her claim of

discrimination under the FHA, PetitionerÓs Complaint also

alleges a violation of s ection 504 of the Rehabilitation Act of

1973 . Section 504 , codified at 29 U .S. C . § 794, provides in

pertinent part:

No otherwise qualified individual with a

disability in the United States, as defined

in section 7 05 (20) [ 29 USC § 705(20) ],

shall, solely by reason of her or his

disability, be excluded from the

participation in, be denied the benefits of,

or be subjected to discrimination under any

program or activity receiving Federal

financial assistance or under any program or

activity conducted by any Executive agency

or by the United States Postal Service.

The fact s do not support a claim under s ection 504.

Petitioner failed to show that her disability played any role

whatsoever in RespondentÓs decision to decline a Section 8

voucher for the 15141 Po mp Parkway unit occupied by PetitionerÓs

daughter who owned the unit.

In addition, although Petitioner makes reference to the

Americans with Disabilities Act, an analysis under that law is

not appropriate. Rather, FHA case law and standards are

applicab le to this case involving residential housing , as

opposed to the American s with Disabilities Act (ADA) case law

and standards which are applied to discrimination claims

involving public accommodations . See , e.g. , Harding v. Orlando

Apts., LLC , 748 F.3d 1128 (11 Cir. 2014)(discussing FHA

standards in context of alleged residential housing

discrimination) and Thompson v. Sand Cliffs Owners Assoc. ,

No. 3:96cv270/RV, 1998 U.S. Dist. Lexis 32632 (N.D. Fla.

Mar. 30, 1998)(explaining that ADA standards are a pplicable to

discrimination with regard to public accommodations, not

residential housing).

5 / Both the Act and the FHA prohibit discriminating against a

person on the basis of a "handicap," by refusing to make

reasonable accommodations when necessary to afford the person

equal opportunity to use and enjoy a dwelling. § 760.23(2),

Fla. Stat.; 42 U.S.C. § 3604(f)(3)(B). In applicable case law

and this Recommended Order, the terms ÐhandicapÑ and

ÐdisabilityÑ are used interchangeably. As noted by the Elev enth

Circuit Court of Appeal:

The FHA refers to discrimination based on

"handicap" rather than disability. 42 U.S.C.

§ 3604(f) . Disability scholars, however,

generally prefer the term "disability" to

handicap, and the Americans with

Disabilities Act, Pub . L. No. 101 - 336, 104

Stat. 327 (1990) (codified as amended at 42

U.S.C. §§ 12101 - 12213 ) ("ADA"), reflects

that preference. For this reason, we treat

the terms interchangeably and elect to use

"disability" and the preferred possessive

construction. See Giebeler v. M&B Assocs.,

343 F.3d 1143, 1146 n.2 (9th Cir. 2003)

(using the terms interchangeably and stating

the same rationale for doing so); Michelle

Aavis, Impairment as Protected Status:

A New Universality for Disability Rights , 46

Ga. L. Rev. 93 7 (2012) (referring throughout

to persons "with disabilities" rather than

"disabled persons").

Bhogaita , 765 F.3d at 1285, n.2.

COPIES FURNISHED:

Peggy Troiano

15141 Pomp Parkway

Weeki Wachee, Florida 34614

(eServed)

LaShawnda K. Jackson, Esquire

Rumberger, Kirk & Caldwell, P.A.

300 South Orange Avenue, Suite 1400

Orlando, Florida 32835

(eServed)

Tammy Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

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.