15-001720 Diana Varona vs. Hialeah Housing Authority Status: Closed Recommended Order on Wednesday, November 4, 2015.

Summary: Petitioner failed to prove discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANA VARONA,

Petitioner,

vs. Case No. 15 - 1720

HIALEAH HOUSING AUTHORITY,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

on August 5, 2015, and continued to and concluded on August 27,

in Kissimmee, Florida, before Administrative Law Judge , Lynne A.

Quimby - Pennock , of the Division of Administrative Hearings

(Division). Respondent participated in the hearin g by

telephonic conference call from Hialeah, Florida.

APPEARANCES

For Petitioner: Diane Varona, pro se

12006 Dunmore Court

Orlando, Florida 32821

For Respondent: S. Nicole Bates, Esquire

Hia leah Housing Authority

75 East 6th Street

Hialeah, Florida 33010

STATEMENT OF THE ISSUE

Whether Respondent, Hialeah Housing Authority (the Housing

Authority), discriminated against Petitioner, Diana Varona, in

violation of the Florida Fair Housing Act (the Act), and, if so,

the relief to which Petitioner is entitled.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations (FCHR) and the

Federal Department of Housing and Urban Development (HUD)

administe r the Act , sections 760.20 through 760.37, Florida

Statutes (201 5 ). By letter dated August 26, 2013, Petitioner

was notified that the Housing Authority was terminating her

participation in the Section 8 Housing Choice Voucher Program

(section 8 program), for two reasons: (1) D ocumentation

evidencing Petitioner Ós arrest on April 30, 2013 , for alleged

violent criminal activity ; and (2) A determination that two

unauthorized individuals ha d been living in PetitionerÓs rental

unit. Petitioner requested an a dministrative hearing regarding

the termination of her housing assistance.

Petitioner requested a continuance of the Housing

AuthorityÓs administrative hearing. The Housing Authority

granted her request, and the administrative hearing was re -

scheduled to early December 2013.

By letter dated December 9, 2013, the Housing Aut hority

notified Petitioner that following the administrative hearing,

at which Petitioner was represented by counsel, and careful

consideration of the testimony and documentation, Pet i tioner's

termination from the s ection 8 program was upheld.

On November 10, 2014, Petitioner executed a housing

discrimination complaint with the Florida Commission on Human

Relations (Commission). 1/ The Commission investigated, and on

February 12, 2015, entered a Notice of Determination of No Cause

(Notice). The Notice was sent to Petitioner via certified mail.

On March 23, Petitioner filed a Petition for Relief with the

Commission, and the Commission referred the case to the Division

that same day.

At the final hearing, Petitioner testified on her own

behalf. PetitionerÓs 21 exhibits 2/ were admitted into evidence

over objection. Respondent presented the testimony of

Magalys Forte, Paulette Smith, Rene Gutierrez, Joel Bonilla , and

Yinet Companioni. RespondentÓs Exhibits A through O were

admitted into evidence. 3/

At the end of the hearing, RespondentÓs counsel confirmed

that a transcript of the final hearing would be ordered.

Petitioner asked for 15 days following the filing of the

transcript in whi ch to file proposed recommended order s (PRO s ) .

T he request was granted.

The Transcript was filed on September 21, 2015, and the

undersigned immediately issued a Notice of Filing Transcript

(N otice). That N otice confirmed that the Ðproposed orders in

this matter must be filed with the Division of Administrative

Hearings by close of business on or before October 6, 2015.Ñ

The parties timely submitted their PROs, which have been

duly considered in the preparation of this Recommended Order.

Unless otherwise stated, all stat utory references are to

the 2015 codification of the Florida Statutes.

FINDING S OF FACT

1. Petitioner is a black Hispanic female. She is a former

resident of an apartment complex administered by the Housing

Authority.

2. The Housing Auth ority is a public housing authority

that administers the section 8 program within Miami - Dade County,

Florida, pursuant to 42 U.S.C. section 1437f.

3. Under the section 8 program, the Housing Authority uses

funds, supplied by HUD, to pay a percentage of th e 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. As part of the Housing AuthorityÓs program, each year

section 8 participants must complete a personal declarati on

form. This form requires specific information about various

aspects of the declarant and those family members authorized to

participate in the program. The information includes the

declarantÓs financial circumstances and other facts .

4. In or around January 2012, Petitioner moved into an

apartment complex administere d by the Housing Authority from

out Î of - state. Petitioner and her two minor children were the

only authorized occupants for the apartment.

5. Petitioner was diagnosed with ADH D (attent ion deficit

hyperactivity disorder), bipolar disorder , and cancer in 2012 or

2013. She was scheduled for cancer surgery in July 2013, but

had to cancel the surgery due to an unexpected addition to her

family.

6. On July 22, 2013, Petitioner requested t o break her

lease when she reported to the Housing Authority what she

considered to be Ðlife - threateningÑ conditions in her apartment,

as well as the harassment of her children when they played

outside. Petitioner had to go up the Housing AuthorityÓs chai n -

of - command to get assistance; however , her apartment was

inspected. As a result of the inspection, PetitionerÓs landlord

advised the Housing Authority that there were additional people

living in PetitionerÓs apartment.

7. Base d on the landlordÓs observ ation of unauthorized

persons living in the apartment, the Housing Authority

instituted a fraud investigation.

8. Detective Gutierrez is a Hialeah police officer

assigned to the Housing Authority as an investigator. Detective

Gutierrez conducts investi gations into alleged violations of

section 414.39 , Florida Stat ute s (fraud).

9. On August 13, 2013, Detective Gutierrez knocked on

PetitionerÓs front door. Petitioner opened the door and enga ged

in a conversation with the d etective. While standing at

P etitionerÓs front door, Detective Gutierrez observed two adult

males in PetitionerÓs apartment. Jose Varona, PetitionerÓs

uncle, was released to Petitioner on July 24, 2013, 4/ and was

living in PetitionerÓs apartment. Lazaro Gomez, PetitionerÓs

boyfriend , was also living in PetitionerÓs apartment. 5/

10. Once his conversation was completed, Detective

Gutierrez returned to his office and reviewed PetitionerÓs

section 8 personal declaration form. On the form, Detective

Gutierrez noted that Petitioner sta ted that she had never been

arrested. Detective Gutierrez researched police records and

determined that Petitioner had, in fact, been arrested in April

2013 for making a threat against an individual. Additionally,

Detective Gutierrez noted that Petitione rÓs stated income on the

declaration form did not support the purchase of an automobile

via a loan agreement.

11. On August 13, 2013, Petitioner submitted to the

Housing Authority an incom plete application for a live - in aide

to assist her. The Housing A uthorityÓs application is seven

pages long and Petitioner failed to submit two pages that

provided information from her treating physician.

12. The Housing AuthorityÓs process to deter mine whether

to grant a live - in aide request involves a three step pr ocess:

the verification that the requesting individual is disabled

(meets the definition of a disabled person via a physicianÓs

confirmation); that the individual needs the assistance of

another person (which is also determined by a physicianÓs

documentat ion); and that the live - in - aide qualifies as a live - in

aide. On August 22, the Housing Authority denied PetitionerÓs

app lication for a live - in aide, but notified her that she could

supplement her request with additional documentation, including

the doctor Ós verification. Petitioner did not supplement her

application.

13. Petitioner also claimed she filed a request to allow a

family member, Mr. Varona, to move in with her family.

Petitioner discussed with the Housing Authority personnel about

adding he r uncle to her contract. However, the Housing

Authority never received a written request for Mr. Varona to be

added to PetitionerÓs voucher. It is the Housing AuthorityÓs

policy that it does not add adult family members to a voucher

contract except via m arriage or legal guardianship. Although

Petitioner holds the power of attorney for Mr. Varona, she is

not his legal guardian.

14. Detective Gutier rez completed his investigation and

filed his re port with the Housing Authority. On August 26, the

Housing Authority notified Petitioner that her participation in

the section 8 Housing Choice Voucher Program was terminated,

effective September 30. The basis given for PetitionerÓs

housing termination were listed as: engaging in criminal

activity and failing to disclose it to the Housing Authority in

her personal declaration in July 2013 (verification that

Petitioner had been arrested on April 30, 2013) ; and allowing an

unauthorized person to reside in the apartment.

15. Petitioner timely requested an administr ative hearing

regarding the termination of her housing voucher. The hearing

was originally scheduled for October 30, 2013; however, o n

October 28, Petitioner requested a continuance of the hearing

based on her physical condition. The request was granted and

the hearing was continued to December 3.

16. In early November 2013, Petitioner asked the Housing

Authority for a reasonable accommodation for an apartment with

accessible features. The Housing Authority did not approve or

deny this request , as it d oes not own the apartments, but

offered to send her a list of accessible units known to the

Housing Authority. Petitioner never contacted the Housing

Authority for additional information.

17. Petitioner was represented by an attorney at the

Housing A utho rityÓs December 3 hearing. As a result of this

hearing, PetitionerÓs termination of participation in the

section 8 program was upheld.

18. That said, Petitioner failed to present any credible

evidence that other residents in the community were treated

di fferently.

CONCLUSIONS OF LAW

19. The Division has juris diction over the parties to and

the subject matter of this proceeding pursuant to sections

120.569 and 120.57(1), Florida Statutes.

20. Petitioner has the burden of proving by a

preponderance of the evidence that the Housing Authority

violated the Act by discriminating against her. The Act is

codified in sections 760.20 through 760.37. Section 760.23

reads in pertinent part:

Discrimination in the sale or rental of

housing and other prohibited pr actices. Ï

* * *

(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.

21. The preponderance 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 cer tain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

22. 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 DCA 1996), aff'd , 679 So. 2d

1183 (Fla . 1996). If, however, the complainant establishes a

prima facie case, the burden then shifts to the respondent to

articulate some legitimate, nondiscriminatory reason for its

action. If the respondent satisfies this burden, then the

complainant must esta blish by a preponderance of the evidence

that the reason asserted by the respondent is, in fact, merely a

pretext for discrimination. See Massaro v. Mainlands Section 1

& 2 Civic Ass'n, Inc. , 3 F.3d 1472, 1476, n.6 (11th Cir. 1993),

cert. denied , 513 U.S. 808 (1994) (fair housing discrimination

cases are subject to the three - part test articulated in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973)).

23. There is no credible evidence in the record to support

the allegation of discrimination based on P etitionerÓs race or

disability. There is no evidence that Petitioner was

discriminated against by the Housing Authority. Petitioner

failed to meet her burden of demonstrating that the Housing

Authority discriminated against her.

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 Petitioner in its entirety.

DONE AND ENTERED this 4 th day of Novem ber , 2015 , 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 4 th day of November , 2015 .

ENDNOTE S

1/ At the top of the complaint form is the date October 22,

2014; however it appears that Petit ioner executed and dated the

complaint on November 10, 2014.

2/ PetitionerÓs exhibits were not clearly marked or paginated

for ease of reference.

3/ Exhibits A, E and N were admitted over objection.

4/ Pe titioner testified when Mr. Varona was release d from

federal prison, he was originally living with Ðhis last childÓs

mother.Ñ However, she (the childÓs mother) had Mr. Varona

ÐBaker ActedÑ and Petitioner was Ðcall ed [on] July 23rd, 24th

. . . to take care of him.Ñ

5/ Pe titioner testified that she was to have surgery in July

2013, that Mr. Gomez was living with her to help her with her

cancer surgery, and that her July 2013 surgery was cancelled.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanad e Way , Room 110

Tallahassee, Florida 32399

(eServed)

Julio Ponce

Hialeah Housing Authority

75 East 6th Street

Hialeah, Florida 33010

Diana Varona

12006 Dunmore Court

Orlando, Florida 32821

S. Nicole Bates, Esquire

Hialeah Housing Authority

75 East 6t h Street

Hialeah, Florida 33010

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.