18-002663 Donald Bayer vs. Winter Haven Housing Authority Status: Closed Recommended Order on Monday, May 6, 2019.

Summary: Housing authority could not provide blind tenant assistance to complete application because only employee was busy processing first-of-month rents. Request to return for assistance the next day was reasonable. Refusal to return was not.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD BAYER,

Petitioner,

vs. Case No. 18 - 2663

WINTER HAVEN HOUSING AUTHORITY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division), conducted the

final hearing in this matter on July 25, 2018, in Winter Haven,

Florida.

APPEARANCES

For Petitioner: Donald Bayer, pro se

Apartment No. 301

391 Avenue O Northeast

Winter Haven, Florida 33881

For Respondent: Joseph P. Mawhinney, Esquire

Reed Mawhinney & Link, PLLC

1611 Harden Boulevard

Lakeland, Florida 33803

STATEMENT OF THE ISSUE

Did Respondent, Winter Haven Housing Authority (Authority),

discriminate against Petitioner, Donald Bayer, in the sale or

rental of housing on account of a disability?

PRELIMINARY STATEMENT

Mr. Bayer filed h ousing d iscrimination c omplaint s with the

United States Department of Housing and Urban Development and the

Florida Commission on Human Relations (Commission). The

complaints alleged that the Authority discriminated against

Mr. Bayer because of a visual disability. Mr. Bayer asserted

that the Authori ty did not provide him a reasonable accommodation

for completing an application for low - income Ð section 8

housing . Ñ 1/ The Commission investigated the complaint s . It

determined that the Authority did not unlawfully discriminate

against Mr. Bayer. The Commission concluded that Mr. Bayer did

not allow the Authority sufficient time to grant his

accommodation request.

Mr. Bayer disputed the decision by filing a Pet ition for

Relief with the Commission. The Commission transmitted the

matter to the Division to conduct a formal hearing.

Mr. Bayer presented testimony from Dian Diaz and himself at

the hearing. Mr. BayerÓs Exhibits 1 through 4 and 6 through 15

were admit ted. The Authority presented testimony from Bersy

Sanchez.

As an accommodation for his visual impairment, Mr. Bayer was

provided a transcript of the hearing in computer formats that his

software could convert to spoken word. Also , Mr. Bayer was

provided additional time in which to prepare a proposed

recommended order.

The Authority timely filed a proposed recommended order.

Mr. Bayer did not file a proposed recommended order.

FINDING S OF FACT

1. Mr. Bayer is visually impaired. At all material times

he was a resident of Lakeside Terrace Senior Apartment Homes

(Lakeside) in Winter Haven, Florida, operated by the Authority.

On March 3, 2017, while in LakesideÓs management office to pay

his rent, Mr. Bayer asked the property manager, Bersy Sanchez, to

help him complete an application for a s ection 8 h ousing subsidy.

2. Because it was early in the month, Ms. Sanchez was very

busy collecting rent s for LakesideÓs 84 units. She was the only

employe e in the office.

3. Ms. Sanchez and Mr. Bayer disagree about the exact

content of their conversation. Consider ing the witnessesÓ

demeanor and the areas about which there is no disagreement,

Ms. SanchezÓ testimony was more credible and persuasive. In

ad dition, they agree that Ms. Sanchez told Mr. Bayer she was too

busy to assist him that day but would assist him if he returned

to the office the following day. (T r 61 & 62). According to

Mr. Bayer, Ms. Sanchez said, ÐWill you come back tomorrow?Ñ

(Tr 19).

4. Mr. Bayer did not return to the office to complete the

application the next day or any day afterwards. He explained his

decision like this: ÐI Î if I would have went back the next day

I would have given away my complaint that she had violated my

rights because maybe she would have helped me fill out the

application. IÓm not giving away a free violation of my rights,

and tha tÓs why I did not go back.Ñ (Tr 61).

5. By any measure, Ms. SanchezÓ offer to assist Mr. Bayer

the next day was a reason able accommodation for his visual

disability. Mr. BayerÓs explanation for refusing to return the

next day demonstrates intent to secure an advantage over the

Authority.

CONCLUSIONS OF LAW

6. The Division has jurisdiction over the parties and

subject matter of this proceeding. §§ 120.569, 120.57(1), and

760.35(3), Fla. Stat. (2018) . 2/

7. Mr. Bayer brings his complaint under FloridaÓs Fair

Housing Act, sections 760.20 through 760.37, Florida Statutes.

He alleges that the Authority engaged in a discri minatory housing

practice by refusing to immediately assist him with completing

the s ection 8 housing application. Mr. Bayer bears the burden of

proving his claim by a preponderance of the evidence. See

§§ 760.34(5) and 120.57(1)(j), Fla. Stat.

8. Disc riminati on against a person in the sale or rental of

housing because of a handicap is unlawful. § 760.23, Fla. Stat.

Mr. BayerÓs visual disability is a handicap. £ 760.22(7)(a),

Fla. Stat. Refusing to provide him a reasonable accommodation

for his disability woul d be unlawful, if it occurred.

§ 760.23(9)(b), Fla. Stat.

9. The Authority did not refuse to provide Mr. Bayer a

reasonable accommodation. It offered to provide the requested

accommodation. It only asked in good faith that Mr. Bayer return

the next day for assistance because the only person in the offic e

on the day of his request was very busy. This was reasonable.

Mr. BayerÓs response was not.

10. Mr. Bayer rejected the accommodation because he saw a

chance to impose liability upon the Authority. Accommodation is

an interactive, Ðgive and take,Ñ pro cess to determine what

accommodation will help. Neither party may sabotage the process

in order to avoid or inflict liability. Ward v. McDonald , 762

F.3d 24 ( D.C. Cir. 2014) (Prompt meeting to address accommodation

request with some delay to complete pap erwork documenting

disability was reasonable; employee leaving the same day and

never returning was not.); c ompare Groome Res., Ltd. v. Parish of

Jefferson , 234 F.3d 192 (5th Cir. 2000) ( C ontinued indeterminate

delay in responding to accommodation request can amount to

denial .) 3/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief of Petitioner,

Donald Bayer.

DONE AND ENTERED this 6th day of May , 2019 , in Tallahassee,

Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 6th day of May , 2019 .

ENDNOTE S

1/ Ð Section 8 [low income] housing was created by the Housing and

Community Development Act of 1974, Pub. L. No. 93 - 383, § 201(a),

88 Stat. 633, 662. Section 8 housing differs from public housing

in several ways. Most important, section 8 housing is owned by

private parties who enter into contracts with government

authorities, while public housing is owned directly by Public

Housing Authorities (ÒPHAsÓ).Ñ Paris v. DepÓt of Housing and

Urban Dev. , 843 F.2d 561, 563 (1st Cir. 1988).

2/ Citations to Florida Statutes are to the 2018 codification

unless noted otherwise.

3/ Florida's c hapter 760 is patterned after Title VII of the

Civil Rights Act of 1964, as amended. Consequently, Florida

courts look to fede ral case law when interpretin g c hapter 760.

Valenzuela v GlobeGround N . Am . , LLC. , 18 So. 3d 17 (Fla. 3 d DCA

2009).

COPIES FURNISHED:

Winter Haven Housing Authority

2653 Avenue C Southwest

Winter Haven, Florida 33880

Tammy S. Barton, Agency Clerk

Florida Commission on Human Rela tions

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Donald Bayer

Apartment No. 301

391 Avenue O Northeast

Winter Haven, Florida 33881

Joseph P. Mawhinney, Esquire

Reed, Mawhinney & Link, PLLC

1611 Harden Boulevard

Lakeland, Florida 33803 - 1826

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(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.