20-003110 Karenlee Krason vs. Brevard County Housing Authority, Et Al Status: Closed Recommended Order on Tuesday, November 24, 2020.

Summary: Petitioner's claim that she was discriminated against on the basis of her disability fails, and the entry of a Summary Recommended Order of Dismissal is appropriate under the facts of this case.

S TATEMENT OF T HE I SSUE

Whether, on the basis of her handicap, Respondent discriminated against

P etitioner as alleged in Petitioner’s Housing Discrimination Complaint, in

violation of the Florida Fair Housing Act (“FFHA”).

P RELIMINARY S TATEMENT

Petitioner, KarenLee Krason, filed her Housing Discrimination Complaint

(“Complaint”) with the Florida Comm ission on Human Relations (“FCHR”) on

February 25, 2020. This is an action alleging housing discrimination brought

pursuant to the FFHA, as amended, and codified in sections 760.20 - . 37,

Florida Statutes. Respondent is a Public Housing Agency ( “ PHA ” ), under the

U.S. Department of Housing & Urban Development ( “ HUD ” ), which

administers vouchers provided in Brevard County, Florida, as part of the Housing Choice Voucher Program ( “ HCV Program ” ) , also known as Section 8.

Petitioner was one of Respondent’s HCV Prog ram clients. Petitioner alleges

in her Complaint that she was discriminated against based on her disability and she was treated differently than non - disabled voucher holders. Petitioner

further alleges she continues to be harassed by Respondent’s employees and

receives threats that her voucher will be terminated.

FCHR investigated Petitioner’s claims and on June 12, 2020, FCHR

issued a determination finding “no cause” for Petitioner’s Complaint against

Respondent. FCHR found that Petitioner failed to stat e a claim for

harassment based on her disability because there was no evidence of

discrimination.

Furthermore, FCHR concluded Petitioner was not currently qualified to

receive the voucher due to her failure to conform to the terms of Respondent’s policie s. Lastly, FCHR found Respondent could not be found to have

discriminated by refusing to sell or rent a property to Petitioner because

Respondent was not responsible for providing housing, and Petitioner failed

to make a bona fide offer to Respondent for t he purchase or rental of a

property.

Dissatisfied with the Commission’s determination, on July 13, 2020,

Petitioner filed the Petition for Relief (“Petition”) which is t he subject of this

proceeding. The Petition was referred to the Division of Administra tive

Hearings (“DOAH”) that same day, and assigned to the undersigned

administrative law judge.

The undersigned scheduled the final hearing for September 28, 2020, but

on September 23, 2020, Respondent filed a Motion, and Amended Motion, for Continuance. That motion was granted and this matter was rescheduled for

final hearing on October 28, 2020.

On October 12, 2020 , Respondent filed the Motion for Summary

Recommended Order (“Motion”) , which is now before the undersigned.

Petitioner did not file a respon se to the Motion within the allowable response

period. Due to the potentially dispositive nature of the Motion, and the short

time remaining prior to the scheduled final hearing, on October 21, 2020 , the

undersigned determined that in all fairness to Petit ioner , the final hearing

should be cancelled to allow time for Petitioner to respond to the Motion. In

the Order entered on that date , the undersigned expressly ruled that

Petitioner may file a written response to the Motion within ten days of the

date of the Order, and should she so choose, also file sworn affidavits in

support of her response to the Motion.

On October 22, 2020 , Petitioner responded by e - mail to the Motion,

stating in full , “I contest the latest Request for summery [ sic ] judgment.” No

aff idavits or other documents were attached to Petitioner’s response to the

motion.

The Motion invokes the procedure in section 120.57(1)(i), Florida Statutes,

which provides as follows:

When, in any proceeding conducted pursuant to

this subsection, a dispu te of material fact no longer

exists, any party may move the administrative law judge to relinqui sh jurisdiction to the agency. An

order relinquishing jurisdiction shall be rendered if

the administrative law judge determines from the

pleadings, depositions , answers to interrogatories,

and admissions on file, together with supporting and opposing affidavits, if any, that no genuine

issue as to any material fact exists. If the

administrative law judge enters an order

relinquishing jurisdiction, the agency may

promptly conduct a proceeding pursuant to subsection (2), if appropriate, but the parties may

not raise any issues of disputed fact that could have

been raised before the administrative law judge. An

order entered by an administrative law judge relinquish ing jurisdiction to the agency based upon

a determination that no genuine dispute of

material fact exists, need not contain findings of

fact, conclusions of law, or a recommended disposition or penalty.

Attached to Respondent’s Motion is the affidavit of Cheryl Disco, a

manager of the Housing Authority of Brevard County (“HABC”) .

1 This

affidavit contains multiple factual statements that are material and relevant

to the disposition of this case. None of those statements have been rebutted

by Petitioner, and accordingly, to the extent relevant, they have been

incorporated in the Findings of Fact herein.

1 As noted by Respondent, the case style inc orrectly names the Respondent. The correct name

is the “Housing Authority of Brevard County.”

The undersigned has determined from the pleadings and affidavit on file

that no genuine issue as to any material fact exists with regard to the

dispositive i ssues raised by the Motion, and that, based on the unrebutted

facts, the Petition should be dismissed.

While it is recognized that, per section 120.57(1)(i), this Order “need not”

contain findings of fact, conclusions of law, and recommended disposition, the

undersigned chooses to do so here, to fully explain the bases for these

determinations and to offer the legal analysis leading to the recommended

disposition.

Unless otherwise noted, all citations to the Florida Statutes are to the

2020 version.

F IND INGS OF F ACT

1 . HABC is a PHA that administers vouchers used in Brevard County,

Florida, as part of the HCV Program .

2 . Petitioner, Karenlee Krason, began receiving an HCV Program voucher

("voucher") in 2009. In 2019, she rented a two - bedroom house at 407 Ward

Road Southwest, Melbourne, Florida, 32980 ("Ward Unit").

3 . HABC granted a reasonable accommodation to Petitioner by approving

a second bedroom for her oxygen equipment.

4 . On July 30, 2019, Petitioner's landlord notified her in writing that her

leas e would not be renewed for the Ward Unit.

5 . Ms. Alysha Connor, a Section 8 Technician at the HABC, scheduled a

relocation appointment on October 9, 2019, to assess Petitioner's plan for

finding new housing. HABC issued Petitioner a voucher authorizing he r to

find new housing within 60 days.

6 . HABC is not responsible for finding suitable housing for voucher

recipients. However, HABC repeatedly attempted to assist Petitioner in

finding a new place to reside.

7 . Petitioner notified HABC that she found a pl ace to rent at Las Palmas

Apartments, located at 1915 Agora Circle, Unit 101, Palm Bay, Florida 32909

(“Agora Circle Unit").

8. In an e - mail dated November 5, 2019, Petitioner requested that her

voucher include reimbursement for expenses relating to her c ertified service

animal.

9 . A Request for Tenancy Approval was submitted for the Agora Circle

Unit for a potential move - in date of December 1, 2019.

10 . All rental units must meet minimum standards of health and safety

and pass a Housing Quality Standard ( “ HQS ” ) inspection, as determined by

HABC in cooperation with HUD.

1 1 . The Agora Circle Unit failed an inspection conducted by HABC on

November 18, 2019. HABC identified the conditions/items needing to be

addressed in order to pass inspection.

1 2 . In the m eantime, HABC obtained an extension on Petitioner's Ward

Unit lease with her landlord. The lease would not expire until December 31,

2019. An additional inspection of the Agora Circle Unit was performed on

November 27, 2019, at which time the Agora Circle Unit passed HABC's re -

inspection. However, Petitioner communicated to HABC that she no longer

wanted to rent the Agora Circle Unit.

1 3 . Petitioner now expressed a desire to rent a unit at 409 Mercury

Avenue S outheast , Unit 103, Palm Bay, Florida ("Mercury Unit"). The

Mercury Unit passed HABC's inspection on December 11, 2019. However, issues arose with Petitioner refusing to submit an application for her

daughter's background check. HABC had offered to pay the required

application fee, but the landlord revo ked Petitioner's application approval

because she failed to comply with the landlord's request for the background

check.

14 . By this time, Petitioner's lease extension for the Ward Unit had

expired, as of December 31, 2019. However, Petitioner was still re siding in

the unit. On January 9, 2020, HABC attempted to obtain another extension

on Petitioner's lease, but the landlord refused the request. Nonetheless

Petitioner continued to live in the Ward Unit as she searched for alternative

housing.

1 5 . On Februa ry 3, 2020 , Petitioner's realtor, Bruce Reilly, contacted

HABC regarding a unit located at 1642 Lizette Street S outheast , Palm Bay,

Florida ("Lizette Unit"). Mr. Reilly inquired whether Petitioner could afford

the unit. HABC provided Mr. Reilly its calcula tions on what Petitioner could

qualify for. There were no further communications from Mr. Reilly.

1 6 . During this time, Petitioner's landlord at the Ward Unit provided her

with notice to vacate the unit by February 29, 2020. Furthermore, the

landlord commu nicated to HABC that he would no longer accept rent from

HABC for the following month.

1 7 . Two days before her deadline to vacate the Ward Unit, Petitioner sent

an email to HABC advising that she had located a unit at 3025 Thrush Drive, Unit 101 , Melbourne , Florida (''Thrush Unit"). Petitioner advised HABC that

the property needed to be inspected the following day.

1 8 . The Request for Tenancy Approval ('"RFTA") packet submitted by

Petitioner for the Thrush Unit was incomplete. Although HABC was closed for b usiness on Friday, February 28, 2020, HABC made arrangements for one

of its employees to inspect the Thrush Unit that day. In addition, HABC's CEO, Michael Bean, accelerated the process to allow Petitioner to relocate to the Thrush Unit immediately so she would not become homeless.

1 9 . Later that day, Petitioner notified HABC that the Thrush Unit had

been rented to another individual.

20 . Throughout the relocation process, Petitioner was granted numerous

extensions on her voucher.

2 1 . At the end of each year, HABC conducts a mandatory review of the

financial information provided by Section 8 voucher recipients through the

Enterprise Income Verification ( “ EIV ” ) system. EIV provides a comprehensive

online system for the determination and verification of var ious resident

information and income that PHAs use to determine rental subsidies.

2 2 . On or about January 2020, EIV reported that Petitioner's daughter

was working at Cumberland Farms. Petitioner had failed to disclose this fact. Upon contacting Petitioner to discuss this omission, Petitioner continued to

assert that her daughter was not employed. HABC proceeded to investigate

this matter further.

2 3 . Throughout its investigation, HABC retrieved employment records

from Cumberland Farms. This documentation c onfirmed that Petitioner’s daughter indeed worked at Cumberland Farms. Moreover, Florida Power and

Light billing records disclosed that Petitioner’s daughter no longer resided at the residence occupied by Petitioner.

2 4 . In light of the above revelations, HABC began the process of

terminating Petitioner's voucher because she had violated HABC's policies and regulations. Specifically, Petitioner violated HABC’s policy by failing to disclose additional household income and by failing to disclose that her

dau ghter was no longer living at the Ward Unit.

2 5 . On February 3, 2020 , HABC emailed Petitioner, outlining its findings,

and notifying her that HABC would be terminating her voucher effective March 31, 2020. HABC informed her she had the option to request a hearing

before termination. Petitioner elected to have an informal hearing to contest

her termination from the program.

2 6 . The informal hearing was held on February 14, 2020. Petitioner

appeared by telephone. At the hearing, Petitioner was combative and r efused

to answer questions posed by Hearing Officer G. Phillip J. Zies. She abruptly

ended the telephone call before the conclusion of the hearing. At the hearing,

HABC recommended the Hearing Officer not terminate Petitioner's voucher.

2 7 . On the same da y as the hearing, the Hearing Officer decided to make

Petitioner's status "conditionally eligible" subject to her making

arrangements with HABC to stay in the HCV Program within seven (7) days

of the hearing.

2 8 . On February 19, 2020, HABC reached out to Petitioner via email

providing a list of documents she needed to complete, including:

A. A Retroactive Payment Plan;

B. Nicole Krason ’ s tax returns from 2017, 2018, and

2019 tax years;

C. Copies of updated driver's licenses from

Petitioner and Nicole Kra son; and

D. An Updated Lease Agreement from Nicole

Krason.

2 9 . As of October 9, 2020, the date of Ms. Disco’s affidavit, Petitioner has

failed to provide any of the documents requested above. Notwithstanding

Petitioner’s failure to comply with HABC's doc umentation requests, HABC

has extended Petitioner's voucher until December 31, 2020.

30 . Petitioner’s voucher originally expired on November 30, 2019, but has

been extended th rough December 31, 2020. During the period of the

extension , Petitioner was requi red to complete her annual recertification in

order to remain eligible under the HCV Program. HUD mandates HABC

must conduct an annual re - examination of a participant's eligibility for the

HCV Program. The purpose of the annual re - examination is to establi sh that

every family's eligibility for assistance is based on their income, as

determined in accordance with program rules.

3 1 . During the annual recertification process, Petitioner requested that

her daughter be deemed a “live - in aid” so that her daughter 's income would

not count toward s the household income. However, Petitioner declined to

continue with this process because she wanted the voucher to transfer to her

daughter.

3 2 . According to HUD guidelines, Petitioner's daughter would not qualify

as a liv e - in aide , eligible for rental assistance or occupancy in a subsidized

unit, because her daughter had lived as an "other household adult" between

2008 and 2019. HABC's administrative plan does not allow prior , or current ,

household adults to be live - in aid es.

3 3 . Participant s must provide information requested by HABC because

changes in income or family composition can affect the amount of assistance

a tenant is eligible to receive. Those who fail to cooperate in providing such

information can have their v oucher terminated.

3 4 . On or about July 30, 2020, HABC sent Petitioner an annual

recertification packet in order for her to complete the annual recertification process. This packet needed to be completed by September 1, 2020.

3 5 . On September 17, 2020, HAB C sent a letter to Petitioner advising her

she had not completed the annual recertification packet and that she would

need to complete the packet in order to remain eligible under the HCV Program.

3 6 . On September 23, 2020, Petitioner returned the packet, but it was

incomplete. Specifically, Petitioner did not provide proper documentation for her out - of - pocket medical expenses. HABC requested the proper

documentation be submitted to complete the annual recertification process.

3 7 . Petitioner did provide HAB C with a letter from Health First Alliance

Group confirming her continued need for medical equipment.

3 8 . Independent of the proceedings before FCHR, HUD also investigated

the handling of Petitioner's case by HABC. The scope of HUD’s investigation was to determine whether HABC discriminated against Petitioner in

violation of Section 504 of the Rehabilitation Act of 1973, and its

implementing regula tions found at 24 CFR, Part 8. Section 504 provides that

no otherwise qualified individual with disabilities s hall, solely on the basis of

disability, be excluded from participation in, be denied the benefits of, or

otherwise be subjected to discrimination under any program or activity that

receives federal financial assistance from HUD.

3 9 . HUD’s investigation led to a finding that there were no reasonable

grounds to believe that an unlawful discriminatory housing practice had occurred.

C ONCLUSIONS OF L AW

40 . The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding pursuant to sections

120.569 and 120.57(1).

4 1 . Petitioner filed a Complaint against HABC alleging housing

discrimination under the FFHA. According to Petitioner, HABC allegedly

discriminated against her based on her disability when she r eapplied for

eligibility under the HCV Program (also called the annual recertification/re -

examination process). The FFHA provides a private right of action for “ [a]ny

person who claims to have been injured by a discriminatory housing

practice.” The F F HA is patterned after the federal Fair Housing Act and the

courts have recognized it to be construed consistently with federal law.

Woolington v. 1st Orlando Real Estate Servs . , Inc. , 2011 WL 3919715 at *2

(M.D. Fla. 2011); Loren v. Sasser , 309 F.3d 1296, 1300 n.9 (11th Cir. 2002).

Petitioner has neither alleged nor demonstrated any direct evidence of

discrimination. 2 Accordingly, discrimination claims under either Act are

subject to the burden - shifting analysis set forth in McDonnell Douglas

2 Alt ernatively, Petitioner’s burden may be satisfied with direct evidence of discriminatory

intent. See Trans World Airlines, Inc. v. Thurston , 469 U.S . 111 (1985) (“[T]he McDonnell

Douglas test is inapplicable where the plaintiff presents direct evidence of di scrimination”

inasmuch as “[t]he shifting burdens of proof set for in McDonnell Douglas are designed to

assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’”

Corp oration v. Gree n, 411 U.S. 792 (1973). Head v. Cornerstone Residential

Mgmt . , Inc. , 2010 WL 3781288 at * 6 (S.D. Fla. 2010).

4 2 . Under the three - part McDonnell Douglas burden - shifting analysis, a

petitioner must first prove a prima facie case of discrimination by a

prepon derance of the evidence. Head , 2010 WL 3781288 at * 6. If she can

sufficiently establish a prima facie case, a rebuttable presumption of

discrimination arises and the burden shifts to the respondent to articulate some legitimate, nondiscriminatory reason fo r its action. Id . Finally, if the

respondent articulates a legitimate, nondiscriminatory reason for its action,

to avoid summary judgement (in this context, summary recommended order) ,

the petitioner must then create a genuine issue of material fact as to whether

the advanced reasons are pretextual. Id .

4 3 . Section 760.23 provides in relevant part:

760.23 Discrimination in the sale or rental of

housing and other prohibited practices. —

(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 of, or otherwise to make

unavailable or deny a dwelling to any person because of race, color, national origin, sex, disability, familial status, or religion.

(2) It is unlawful to discriminate agai nst 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,

disability, familial status, or religion.

4 4 . Peti tioner has failed to establish a prima facie case of housing

discrimination under section 760.23(2). To establish a prima facie case of

housing discrimination under this section, Petitioner must establish four

elements: 1) that she belonged to a protected class; 2) that she was qualified

to receive HCV Program housing assistance for the unit in question; 3) that

she was rejected despite her qualifications; and 4) that Respondent continued

to approve other similarly situated applicants outside of her protect ed class

for HCV Program housing assistance. See Martin v. Palm Beach Atlantic

Ass’n, Inc . 696 So. 2d 919, 921 (Fla. 4th DCA 1997); see also Head , 2010

WL 3781288 at * 6; Alley v. Les Cateaux Condo . Ass’n, Inc. , 2010 WL 2774178

at * 3 (M.D. Fla. 2007).

4 5 . W hile HABC does not dispute that Petitioner is disabled, Petitioner

was not qualified to receive HCV Program housing because she failed to abide

by HABC’s policies. Her failure to submit necessary paperwork requested as

part of HABC’s annual recertification process constituted non - compliance

under the terms and policies of the HCV Program. Petitioner was “required to

provide information [to HABC] when requested, and to cooperate in efforts to

verify the information provided.” The documents requested were: (1 ) a copy of

the driver’s license for Petitioner and her daughter; (2) documentation related

to her certified service animal; (3) expenses for her certified service animal;

and (4) her out - of - pocket medical expenses. A “failure to comply with the

PHA’s annu al reexamination requirements is grounds for terminating

assistance.” Despite her initial noncompliance, Petitioner was granted

numerous extensions to submit the necessary paperwork. However, she never

submitted the documents needed. These documents are ne cessary to

determine Petitioner’s eligibility in the HCV Program because HUD

establishes income limits by family size and household income. Pursuant to HUD’s regulations and guidelines, HABC was required to request and obtain

such documents from Petitioner .

4 6 . HABC’s document requests were related to determining Petitioner’s

eligibility and had nothing to do with her disability. There is no evidence Petitioner was treated unfavorably compared to others in the HCV Program.

Despite her noncompliance with HAB C’s documentation requests, Petitioner

was given numerous opportunities to submit the necessary paperwork. Her

possible termination from the HCV Program was due to her noncompliance

with HABC’s policies, not her disability. Accordingly, HABC has clearly

ar ticulated legitimate, nondiscriminatory reasons for terminating Petitioner’s

voucher.

4 7 . Petitioner’s claim must also fail because section 760.23(1) is

inapplicable under the facts of this case. Under the FFHA, it is “unlawful to

refuse to sell or rent af ter the making of a bona fide offer, to refuse to

negotiate for the sale or rental of, or otherwise to make unavailable or deny a

dwelling to any person because of ... handicap....” § 760.23(1) , Fla. Stat .

( e mphasis a dded).

4 8 . To establish a prima facie c ase of refusal to rent based on a handicap

or disability, a petitioner must allege and prove, by a preponderance of the

evidence that , (1) petitioner is handicap ped as defined by the FFHA;

(2) Respondent was aware of it; (3) petitioner was ready, willing, and able to

rent the apartment; and (4) respondent refused to allow her to do so. Martin v. Palm Beach Atlantic Ass'n, Inc. , 696 So. 2d at 921 (noting that in order to

make out a prima facie case of a violation of sub - section 3604(a) for

discriminatory hou sing refusal, a plaintiff must show that he is a member of

a statutorily protected class who applied for and was qualified to rent or

purchase housing and was rejected although housing remained available.);

see also Jackson v. Comberg , 2007 WL 2774178 at * 3 (M.D. Fla. 2007); Alley ,

2010 WL 4739508 at * 5 . (citations omitted).

4 9 . In the present case, Petitioner never made a bona fide offer to rent or

buy a dwelling from HABC. Most significantly, HABC was not responsible for

providing housing to Petitioner, a nd neither did Petitioner request public

housing from HABC. Instead, this case involved her eligibility under the

HCV Program. Accordingly, based on the undisputed material facts, HABC

cannot be found to have violated section 760.23(1).

50 . The unrebutted evidence establishes that Petitioner was afforded

numerous opportunities to comply with HABC’s policies , and she simply

failed to do so. HABC’s requests for documentation are related to assessing

her eligibility under the HCV Program, rather than her disab ility. Despite

HABC’s having grounds to terminate her voucher, HABC has and continues

to allow Petitioner the opportunity to remain in the HCV Program.

5 1 . Petitioner has not established a prima facie case that she was

discriminated against because of her disability. To the contrary, there is no

evidence that she was treated differently than others outside of her protected

class. In fact, HABC and its representatives attempted to assist Petitioner in keeping her voucher. HABC has proffered a legitimate, no n - discriminatory

reason for HABC’s request for documentation under the annual

recertification process, and Petitioner has failed to come forward with any

evidence inconsistent with the proffered reason for requesting such

documentation, namely to assess he r eligibility under the HCV Program.

Therefore, Petitioner’s claim that she was discriminated against on the basis

of her disability fails, and the entry of a Summary Recommended Order of

Dismissal is appropriate under the facts of this case.

R ECOMMENDAT ION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order dismissing Petitioner’s Petition for Relief.

D ONE A ND E NTERED this 2 4th day of November , 2020 , in Tal lahassee,

Leon County, Florida.

W. D AVID W ATKINS

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 2 4th day of November , 2020 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

L aShawnda K. Jackson, Esquire

Rumberger, Kirk & Caldwell, P.A.

Suite 1400

300 South Orange Avenue

Orlando, Florida 32801

(eServed)

KarenLee Krason

c/o General Delivery

Melbourne, Florida 32901

(eServed)

Francis Sheppard, Esquire

Rumberger, Kirk & Cal dwell , P.A.

Suite 1400

300 South Orange Avenue

Orlando, Florida 32801

(eServed)

Michael D. Begey, Esquire

Rumberger, Kirk & Caldwell , P.A.

Suite 1400

300 South Orange Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, General Counsel

Florida Co mmission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any ex ceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this case.