15-003109 Lyric Black vs. Holmes County Housing Authority Status: Closed Recommended Order on Friday, September 4, 2015.

Summary: Petitioner failed to prove by a preponderance of the evidence that Respondent discriminated against her on the basis of her sex. Petitioner was not qualified to obtain a Section 8 housing voucher or to "port" her voucher to another jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYRIC BLACK,

Petitioner,

vs. Case No. 15 - 3109

HOLMES COUNTY HOUSING AUTHORITY,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard on August 6, 20 15, in Tallahassee,

Florida, before Suzanne Van Wyk, a designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lyric Black, pro se

1220 Natchez Trace, Southwest

Marietta, Georgia 30008

For Res pondent: Catrina Carroll, Executive Director

Holmes County Housing Authority

107 East Montana Avenue

Bonifay, Florida 32425

STATEMENT OF THE ISSUE

Whether Petitioner was subject to discrimination in the

rental of a dwelling, or in the ter ms, conditions, or privileges

of rental of a dwelling, based on her gender, in violation of the

Florida Fair Housing Act, chapter 760, Part II, Florida

Statutes. 1/

PRELIMINARY STATEMENT

On March 11, 2015, Petitioner filed a Complaint of

Discrimination with the Florida Commission on Human Relations

(FCHR), alleging that Respondent discriminated against her based

on her sex. The basis for the claim of discrimination was that

Respondent, Holmes County Housing Authority, revoked her housing

choice voucher whic h had been previously - issued under a federal

housing - assistance program. Petitioner claimed that, after

issuance of the voucher, she had left the State of Florida

involuntarily at the hands of her abuser, but wished to remain in

the State of Georgia and w ished to ÐportÑ her voucher to Georgia,

where she felt safer closer to her family. Respondent denied

PetitionerÓs request to ÐportÑ her voucher, and revoked the

voucher.

An investigation of the complaint was made by FCHR. On

May 7, 2015, FCHR issued its Determination of No Cause and Notice

of Determination of No Cause, concluding that there was no

reasonable cause to believe that a discriminatory housing

practice had occurred based on PetitionerÓs sex.

Petitioner disagreed with FCHRÓs determination and, on

May 27, 2015, filed a Petition for Relief. On June 1, 2015, the

petition was forwarded to the Division of Administrative Hearings

for a formal hearing.

The final hearing was scheduled for August 6, 2015, in

Tallahassee, Florida, and commenced as schedu led. Petitioner

appeared via telephone and testified on her own behalf.

Petitioner offered no witnesses and introduced two exhibits which

were admitted in evidence.

Respondent offered the testimony of Catrina Carroll,

Executive Director of the Holmes Cou nty Housing Authority; and

Pamela Long, RespondentÓs receptionist. RespondentÓs Exhibits 1

through 7 were admitted in evidence.

The final hearing was recorded by a court reporter, but the

parties did not order a transcript. The parties timely filed

Propo sed Recommended Orders which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Lyric Black, is an adult female currently

residing in Marietta, Georgia.

2. Respondent, Holmes County Housing Authority, adm inisters

federal housing - assistance programs, including the HUD Section 8

Housing Choice Voucher Program. Respondent is located at 107

East Montana Avenue, Bonifay, Florida 32425.

3. Respondent maintains a local preference for housing

assistance. The local preference is reflected in two policies.

First, RespondentÓs waiting list policy affords highest priority

to local residents. While applicants from other states or

counties may apply for a voucher, local applicants enjoy higher

priority on the wait ing list. Second, RespondentÓs portability

policy authorizes recipients to port their voucher (i.e., use

their voucher in another state or county) only if they have

participated in the program for 12 months. Participation means

residing in the local juri sdiction on the housing voucher.

4. Petitioner applied, in person, for a housing choice

voucher from Respondent on May 28, 2014. On her application,

Petitioner represented her residence as an undisclosed local

shelter for victims of domestic violence. Petitioner represented

that she had lived at the shelter for the past four months and

had previously resided in Marietta, Georgia. Petitioner listed

the names and ages of four minor children living with her,

ranging in age from 5 months to 14 years old. Petitioner also

disclosed that she was pregnant.

5. Petitioner received a preferential position on

RespondentÓs waiting list based on her residence in the area (at

the local domestic violence shelter).

6. At some point after filing her application with

Respondent, Petitioner ÐreturnedÑ to Georgia. The record does

not clearly establish where in Georgia to which she ÐreturnedÑ

after making application.

7. Respondent was unaware that Petitioner had ÐreturnedÑ to

Georgia after applying for the housing c hoice voucher in

May 2014. Respondent understood Petitioner had continued to

reside locally, in the domestic violence shelter or otherwise in

the county, between May and October 2014.

8. In October 2014, Respondent notified Petitioner that

PetitionerÓs name had advanced on the waiting list and would

shortly be at the top.

9. Petitioner testified that she moved to Bonifay in

October 2014 Ðseeking to flee domestic violence.Ñ PetitionerÓs

testimony on this point conflicted with her testimony on cross -

exam ination that she moved to Bonifay in October because she

received word that her name was close to the top of the waiting

list for a housing voucher.

10. On October 29, 2014, Petitioner submitted most of the

documentation required to receive her housing vo ucher from

Respondent. Petitioner needed to submit a few outstanding

documents and sign her voucher form.

11. On November 4, 201 4 , Petitioner notified Respondent

that she would be delayed in submitting the last of her paperwork

and coming in to sign her voucher because she was having a baby.

Catrina Carroll allowed Petitioner until November 12, 2014, to

come in to complete her paperwork and sign her voucher.

12. Petitioner gave birth to a baby girl on November 4,

2014, in Georgia.

13. According to Peti tioner, she returned to Holmes County

with the new baby and her other children Ðtwo or three days

later.Ñ

14. Petitioner completed her paperwork and signed her

voucher at RespondentÓs office on November 12, 2014.

15. After issuing a voucher, Responden t requires recipients

to identify a local rental unit, request Respondent to inspect

and approve the unit, and connect utilities and occupy the unit

within 60 days. Petitioner was given the same amount of time to

complete the required steps to become a pa rticipant in the

voucher program.

16. Respondent had no contact from Petitioner between

November 12, 2014, and December 30, 2014.

17. On December 30, 2014, Petitioner faxed a letter to

Respondent titled ÐPortability Request.Ñ

18. PetitionerÓs letter rea d as follows:

I have experienced a recent severe

domestic violence incident and seek to move

with continued tenant - based assistance (proof

attached). In reference to the initial 12 -

month residency requirement, I do understand

that according to the Violen ce Against Women

and Justice Department and Reauthorization

Act 2005 (VAWA 2005) amended section 8(r) of

the U.S. Housing Act to provide an exception

to the prohibition against a family moving

under the Portability provisions in violation

of the lease.

Furthermore, Denying [sic] the move

would violate VAWA, which provides that an

applicant may not be denied admission or

assistance, terminated from participation in

or evicted because the victim is or has been

a victim of domestic violence, dating

violence , sexual assault or stalking.

Denying such a request to port is also

inconsistent with HUDÓs directive regarding

other portability rules.

In closing, I respectfully request HCHA

to consider this exception to the initial 12 -

month residency requirement and allow me to

port my voucher to:

4273 Wendell Drive

Atlanta, Georgia 30336

Office: (404) 588 - 4950

TTY Line: (404)696 - 0449

Fax: (404) 472 - 3431

This letter also include [sic] a

portability request to address an emergency

situation over which I have no cont rol.

Attached with this letter to serve as proof

of domestic violence: Police Report; ER

medical record of injuries; and TPO. IÓve

also included previous police reports of

documented domestic abuse.

19. Petitioner attached to the letter the following:

(1) an ex parte family violence protective order filed

December 8, 2014, by the Superior Court of Clayton County,

Georgia, against C.H. (whom Petitioner identified as her ex -

boyfriend);

(2) a police report documenting an arrest of C.H. for

aggravated assault on Petitioner during an incident on

December 3, 2014, at 7007 Richmond Court, Apartment C, Jonesboro,

Georgia 30236;

(3) a single - page printout from Southern Regional Medical

Center Emergency Services dated December 4, 2014, documenting an

eva luation and treatment of Petitioner for injuries associated

with an alleged assault; and,

(4) a letter to Petitioner from the Clayton County State

Attorney dated December 12, 2014, offering the services of the

Victim Family Assistance Program.

20. On D ecember 30, 2014, by letter from Catrina Carroll,

RespondentÓs Executive Director, Respondent terminated

PetitionerÓs voucher and denied PetitionerÓs request to port her

voucher.

21. In the termination letter, Ms. Carroll stated, Ð[I]t

seems that you have relocated back to Jonesboro or Marietta, GA

and have therefore invalidated your preference status with our

PHA. We are revoking your local status and terminating your

Voucher effective immediately.Ñ

22. Ms. Carroll added, ÐYou are not being denied assis tance

because of VAWA criteria. Special accommodations are not given

for VAWA, and our policy only gives preference for local

applicants.Ñ

23. Petitioner argues that she and her minor children were

forcibly taken from the parking lot of the domestic viol ence

shelter in Panama City and removed to Georgia on November 18,

2014, by her ex - boyfriend. Petitioner maintains that she was

held captive in Georgia for three weeks, until December 4, 2014,

when she was able to escape and call the police for assistance .

24. Petitioner gave a lengthy statement to police when her

ex - boyfriend was arrested on December 4, 2014. The statement

police report does not include anything about being forcibly

removed from Florida and held against her will in Georgia between

Novem ber 18 and December 4, 2014.

25. Petitioner produced a document at final hearing

purporting to be a copy of her bank statement showing debit and

ATM transactions made in Bonifay, Florida, during the months of

October and November 2014. Petitioner produce d no witness to

authenticate the document and the document is not self -

authenticating pursuant to section 90.902, Florida Statutes

(2015).

26. Apparently , Petitioner believes her personal family

violence circumstance is sufficient grounds for an exception to

RespondentÓs portability policy. On cross - examination, however,

Petitioner admitted her effort to obtain portability of her

voucher was Ða gamble.Ñ Nevertheless, Petitioner expressed

dismay that Respondent revoked her voucher.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2015).

28. The subject matter of this proceeding is limited to

whether Respondent discriminated against Pe titioner in connection

with the rental of a dwelling on the basis of PetitionerÓs sex,

in violation of the Florida Fair Housing Act, sections 760.20

through 760.37, Florida Statutes.

29. The Division has no jurisdiction over PetitionerÓs

claim that Respo ndent violated provisions of the Violence Against

Women and Department of Justice Reauthorization Act of 2005. The

undersigned makes no findings or conclusions relative to said

claim.

30. FloridaÓs Fair Housing Act makes it unlawful to

discriminate aga inst any person in the provision of rental

housing because of sex. In that regard, section 760.23(1),

provides as follows:

(1) It is unlawful to refuse to sell or rent

after the making of a bona fide offer, to

refuse to negotiate for the sale or rental

o f, or otherwise to make unavailable or deny

a dwelling to any person because of race,

color, national origin, sex, handicap,

familial status, or religion.

31. It is likewise unlawful to discriminate against any

person in the terms, conditions, or privile ges of rental housing.

In that regard, section 760.23(2), provides as follows:

(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.

32. In cases involving a claim of rental housing

discrimination, the burden of proof is on the complainant.

§ 760.34(5), Fla. Stat .

33. The Flo rida Fair Housing Act is patterned after Title

VIII of the Civil Rights Act of 1968, as amended by the Fair

Housing Act of 1988, and discrimination covered under the Florida

Fair Housing Act is the same discrimination prohibited under the

Federal Fair Hous ing Act. Savannah Club Worship Serv. v.

Savannah Club HomeownersÓ AssÓn , 456 F. Supp. 2d 1223, 1224 (S.D.

Fla. 2005); see also Loren v. Sasser , 309 F.3d 1296, 1300 (11th

Cir. 2002). When Ða Florida statute is modeled after a federal

law on the same subje ct, the Florida statute will take on the

same constructions as placed on its federal prototype.Ñ Brand v.

Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); see

also Milsap v. Cornerstone Residential Mgmt. , 2010 U.S. Dist.

LEXIS 8031 (S.D. Fla. 20 10) ; Dornbach v. Holley , 854 So. 2d 211,

213 (Fla. 2d DCA 2002); Fla. Dep't of Cmty. Aff. v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

34. A plaintiff may proceed under the Fair Housing Act

under theories of either disparate impact or disparate treatme nt,

or both. Head v. Cornerstone Residential Mgmt. , 2010 U.S. Dist.

LEXIS 99379 (S.D. Fla. 2010). To establish a prima facie case of

disparate impact, Petitioners would have to prove a significantly

adverse or disproportionate impact on a protected class of

persons as a result of RespondentÓs facially - neutral acts or

practices. Head v. Cornerstone Residential Mgmt. , supra (citing

E.E.O.C. v. JoeÓs Stone Crab, Inc. , 220 F.3d 1263, 1278 (11th

Cir. 2000)). To prevail on a disparate treatment in housing

cla im, Petitioners would have to come forward with evidence that

they were treated differently than similarly - situated tenants.

Id. (citing Schwarz v. City of Treasure Island , 544 F.3d 1201,

1216 (11th Cir. 2008) and Hallmark Dev., Inc. v. Fulton Cnty. ,

466 F.3d 1276, 1286 (11th Cir. 2006)).

35. In establishing that she was the subject of

discrimination based upon her sex, Petitioner could either

produce direct evidence of discrimination that motivated

disparate treatment in the provision of services to he r, or prove

circumstantial evidence sufficient to allow the trier of fact to

infer that discrimination was the cause of the disparate

treatment. See King v. Auto, Truck, Indus. Parts & Supply ,

21 F. Supp. 2d 1370, 1381 (N.D. Fla. 1998) .

36. Petitioner pr esented no direct evidence of

discrimination by Respondent related to its revocation of her

voucher or her denial of her request to port her voucher. There

were no statements or acts of any kind that could have been

construed to have been directed to Peti tionerÓs sex.

37. When there is no direct evidence of discrimination,

fair housing cases are subject to the three - part test set forth

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

Texas Department of Community Affairs v. Burdine , 450 U.S. 2 48

(1981). Boykin v. Bank of Am. Corp. , 162 Fed. AppÓx. 837, 838;

2005 U.S. App. LEXIS 28415 (11th Cir. 2005); see also Massaro v.

Mainlands Section 1 & 2 Civic AssÓn , 3 F.3d 1472, 1476 n.6 (11th

Cir. 1993); SecÓy, U.S. DepÓt of Hous. & Urban Dev. on beha lf of

Herron v. Blackwell , 908 F.2d 864, 870 (11th Cir. 1990); Savannah

Club Worship Serv. , 456 F. Supp. 2d at 1231 - 32.

38. Under the three - part test, Petitioner has the initial

burden of establishing a prima facie case of unlawful

discrimination. McDonn ell Douglas , 411 U.S. at 802; Burdine , 450

U.S. at 252 - 253; Burke - Fowler v. Orange Cnty. , 447 F.3d 1319,

1323 (11th Cir. 2006); Valenzuela v GlobeGround N. Am., LLC. , 18

So. 3d 17, 22 (Fla. 3d DCA 2009) . ÐT he elements of a prima facie

case are flexible an d should be tailored, on a case - by - case

basis, to differing factual circumstances .Ñ Boykin , 162 F.

AppÓx. at 838 - 39, (citing Fitzpatrick v. City of Atlanta , 2 F.3d

1112, 1123 (11th Cir. 1993)) .

39. If Petitioner is able to demonstrate p rima facie case

b y a preponderance of the evidence, the burden shifts to

Respondent to articulate a legitimate, non - discriminatory reason

for its actions. Burdine , 450 U.S. at 255; DepÓt of Corr. v.

Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). Respondent has

the burden of production, not persuasion, to demonstrate to the

finder of fact that its action as a rental housing provider, upon

which the complaint was made, was non - discriminatory. Chandler ,

582 So. 2d 1183. This burden of production is "exceedingly

light." Ho lifield , 115 F.3d at 1564; Turnes v. Amsouth Bank , 36

F.3d 1057, 1061 (11th Cir. 1994).

40. If Respondent produces evidence that the basis for its

action was non - discriminatory, then Petitioner must establish

that the prof f erred reason was not the true re ason but merely a

pretext for discrimination. St. MaryÓs Honor Center v. Hicks ,

509 U.S. 502, 516 - 18 (1993). In order to satisfy this final step

of the process, Petitioner must Ðshow[] directly that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the prof f erred reason for

the employment decision is not worthy of belief.Ñ Chandler , 582

S o. 2d at 1186 (citing Burdine , 450 U.S. at 252 - 56). Pretext can

be shown by inconsistencies and/or contradictions in te stimony.

Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 143 (2000);

Blackwell , supra ; Woodward v. Fanboy, L.L.C. , 298 F.3d 1261 (11th

Cir. 2002). The demonstration of pretext Ðmerges with the

plaintiffÓs ultimate burden of showing that the defendant

intentionally discriminated against the plaintiff.Ñ Holifield ,

115 F.3d 1555, 1565 (11th Cir. 1997).

41. As applied to this case, the standard established in

McDonnell - Douglas requires Petitioner to establish in her prima

facie case that: (1) she belong s to a protected class;

(2) Respondent was aware of it; (3) she was ready, willing, and

able to participate in the housing choice voucher program; and

(4) Respondent refused to allow her to participate in the housing

voucher program. See Jackson v. Comber g , Case No. 8:05 - cv - 1713 -

T - 24TMAP, 2006 U.S. Dist. LEXIS 66405, *9 (M.D. Fla. 2006).

42. Petitioner is a female, a fact of which Respondent was

aware. Thus, Petitioner satisfied the first two elements to

establish a prima facie case.

43. However, Peti tioner did not prove by a preponderance of

the evidence that she was a ready, willing, and able participant

in the local housing voucher program.

44. Petitioner was not a local resident of Holmes County,

nor apparently willing to relocate to the area, i n order to

qualify for a local housing choice voucher. Petitioner

represented to Respondent that she resided in Holmes County at an

undisclosed location when she applied for the voucher in

May 2014.

45. The record establishes that Petitioner moved to Geo rgia

shortly after applying for the voucher, only returned to Florida

when she was informed that her name was close to the top of the

voucher waiting list in October 2014, gave birth to a child in

Georgia on November 4, 2014, resided in Georgia between

Nov ember 4 and December 30, 2014, and intended to remain in

Georgia when she requested Respondent allow her to port her

voucher to a specified address in Atlanta, Georgia , on

December 30, 2014.

46. 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), affÓd , 679 So. 2d 1183

(Fla. 1996) (citing Arnold v. Burger Queen Sys. , 509 So. 2d 958

(Fla. 2d DCA 1987)).

47. The undersigned is not unsympathetic to PetitionerÓs

credibl e claim of domestic violence at the hands of her abuser on

December 4, 2014. However, PetitionerÓs circumstance has no

bearing on her qualifications under the Holmes County regulations

for Section 8 housing certificates.

48. Assuming, arguendo , Petitione r had established a prima

facie case of discrimination, Respondent met its burden of

production to demonstrate a legitimate non - discriminatory reason

for revoking PetitionerÓs voucher and denying her portability

thereof.

49. Since Petitioner was not a re sident of Holmes County,

she should not have received preferential status on the housing

choice voucher waiting list. Petitioner did not wish to be

housed in Holmes County, Florida, thus Petitioner did not qualify

to obtain a housing choice voucher from R espondent.

50. Because Petitioner never participated in the Holmes

County Voucher Program, Petitioner did not qualify under

RespondentÓs program portability restrictions.

51 . For the reasons set forth herein, Petitioner failed to

prove that Respondent discriminated against her on the basis of

her sex by revoking her local housing choice voucher, or denying

her application to port the voucher to the State of Georgia.

Petitioner failed to prove Respondent discriminated against her

in the terms, condition s, or privileges of rental of a dwelling

based on her sex, in violation of the Florida Fair Housing Act,

chapter 760, Part II, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Flor ida Commission on Human

Relations issue a final order dismissing the Petition for Relief

filed in FCHR No. 2015H0187.

DONE AND ENTERED this 4th day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN W YK

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 Administrativ e Hearings

this 4th day of September , 2015.

ENDNOTE

1/ Except as otherwise noted herein, all references to the

Florida Statutes are to the 2014 version.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplan ade Way , Room 110

Tallahassee, Florida 32399

(eServed)

Lyric Sir - rock Black

Apartment A

1220 Natchez Trace Southwest

Marietta, Georgia 30008

(eServed)

Catrina L. Carroll

Holmes County Housing Authority

107 East Montana Avenue

Bonifay, Florida 32425

(e Served)

Cheyanne Costilla, General Counsel

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 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.