Sanders v. Sellers–earnest

• Decision Date: 11 June 2010
• Docket Number: Case No. 8:10–CV–1174–T–27TGW.
• Citation: 768 F.Supp.2d 1180
• Parties: Dionne SANDERS, Plaintiff,v.Sylvia SELLERS–EARNEST, in her official capacity as Executive Director of the Housing Authority of the City of Plant City, Florida, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

768 F.Supp.2d 1180

Dionne SANDERS, Plaintiff,

v.Sylvia SELLERS–EARNEST, in her official capacity as Executive Director of the Housing Authority of the City of Plant City, Florida, et al., Defendants.

Case No. 8:10–CV–1174–T–27TGW.

United States District Court, M.D. Florida,Tampa Division.

June 11, 2010.

C. Martin Lawyer, III, Linda Streeter Mann, Bay Area Legal Services, Inc., Tampa, FL, Nancey G. Penner, Bay Area Legal Services, Inc., Plant City, FL, for Plaintiff.J. Miles Buchman, The Buchman Law Firm, Tampa, FL, for Defendants.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is Plaintiffs Motion for a Preliminary Injunction (Dkt. 3), and Defendants' response in opposition (Dkt. 11). Plaintiff challenges the termination of her Section 8 housing assistance, provided pursuant to Section 8 of the Federal Housing Act of 1937, 42 U.S.C. § 1437f (“Section 8”), as amended, which is administered locally by the Housing Authority of the City of Plant City (the “Housing Authority”). Defendants, sued in their official capacities, are Sylvia Sellers–Earnest, the Housing Authority's Executive Director, and Omayra Vanderpool, Section 8 Coordinator. The Court has considered the parties' submissions and the arguments of counsel and finds that the motion should be GRANTED.

Regulatory Background

U.S. Department of Housing and Urban Development (“HUD”) regulations specify when a public housing agency (“PHA”) may terminate a participant family's Section 8 housing assistance payments. See 24 C.F.R. § 982.552. A PHA may terminate assistance if a participant family “violates any family obligations.” 24 C.F.R. § 982.552(c)(1)(i). A participant family is obligated (1) to seek PHA approval for the “composition of the assisted family residing in the unit” and (2) to “request PHA approval to add any other family member as an occupant of the unit.” 24 C.F.R. § 982.551(h)(2).

Tenants confronted with adverse action by a PHA are entitled to specific grievance procedures. See 42 U.S.C. § 1437d(k). HUD regulations outline the procedures that a PHA must follow before terminating a family's Section 8 housing assistance. See 24 C.F.R. § 982.555.¹ A PHA must provide a participant family an opportunity for an informal pretermination hearing if the proposed termination is “because of the family's action or failure to act.” 24 C.F.R. § 982.555(a)(1)(v), (a)(2). Before an informal hearing, a family “must be given the opportunity to examine ... any PHA documents that are directly relevant to the hearing.” 24 C.F.R. § 982.555(e)(2)(i). At the hearing, “[t]he family must be given the opportunity to present evidence, and may question any witnesses. Evidence may be considered without regard to admissibility under the rules of evidence applicable to judicial proceedings.” 24 C.F.R. § 982.555(e)(5). “Factual determinations ... shall be based on a preponderance of the evidence presented at the hearing.” 24 C.F.R. § 982.555(e)(6).

Factual Background

Plaintiff received a letter (Dkt. 1–2 at 1) dated February 18, 2010 stating that (1) the Housing Authority had received information that Kenneth Davis was residing in her unit; (2) Davis had also used her address on an arrest record on February 15, 2010 that the Housing Authority obtained from the Hillsborough County Sheriff's Office; (3) Davis was an unauthorized lodger in Plaintiff's unit; and (4) Plaintiff's housing assistance would therefore be terminated effective March 31, 2010. As the formal reasons for termination, the letter stated that in violation of obligations Plaintiff agreed to in her HUD Form 52646, Plaintiff had (a) used the unit for a purpose other than residence by her family and (b) failed to obtain written approval from the Housing Authority to add another family member as an occupant of the unit.

A hearing was held on April 2, 2010 before hearing officer Marlene Baskin. The hearing was not recorded. The Housing Authority presented the following documentary evidence concerning Davis: (a) a Criminal Report Affidavit/Notice to Appear issued by the Hillsborough County Clerk of Courts dated February 15, 2010 (the “notice to appear”); (b) an Incident Report from the Plant City Police Department dated February 15, 2010 (the “incident report”); and (c) a Hillsborough County Sheriffs Office Arrest Inquiry (the “arrest form”) dated February 15, 2010 (collectively, the “police reports”). ²

Plaintiff testified at the hearing that Davis had never resided with her at the assisted unit, and that as long as she has known Davis, his actual, exclusive residence has been the home of his mother on Baker Street in Plant City (the “Baker Street address”). Plaintiff testified that Davis' mother, Alfredia Davis, told Plaintiff that the reason she contacted the Housing Authority to inform it that her son was living with Plaintiff was that “she was angry with [Plaintiff] and blamed [Plaintiff] for having her son arrested on February 15, 2010.” Pl. Aff. ¶ 17(a)-(c). When asked why she brought no witnesses to the hearing, Plaintiff stated that she assumed none would be necessary because she believed no proof could be offered that Davis lived with her. Id. ¶ 17(e).

Plaintiff submitted the following documents during the hearing: (1) a verified Petition for Injunction for Protection Against Dating Violence pursuant to Section 784.046, Florida Statutes (the “Petition” [Dkt. 3–1 at 14–19] ), filed by Plaintiff in Hillsborough County Circuit Court on February 17, 2010; (2) a Temporary Injunction Against Dating Violence (Dkt. 3–1 at 10–13) issued by that court on the same date enjoining Kenneth Davis, from, inter alia, coming within 500 feet of Plaintiff or her residence; (3) an Amended Temporary Injunction Against Dating Violence (Dkt. 3–1 at 6–9) issued on March 1, 2010; and (4) Plaintiff's undated affidavit (Dkt. 3–1 at 20–21) relating to the same incident she subsequently prepared for Davis's criminal defense attorney. See also Pl. Aff. ¶ 17(f).

In the Petition, Plaintiff described her relationship with Davis as: “we've been together s[i]nce November 2008 sexual and staying together at hot[e]ls and his mom and sometime[s] my houses.” (Dkt. 3–1 at 15). The Petition relates an incident on February 15, 2010 at Plaintiff's home when Davis pushed her to the floor, threatened to kill her, and grabbed her when she attempted to flee, causing her to fall to the floor. Id. at 17–18. The Petition lists Davis's current address as his mother's Baker Street address. Id. at 14. Plaintiff's second, undated affidavit gives a different account of the incident, averring that although Davis never intentionally struck her. Id. at 16–17.

The hearing officer's written decision upheld the decision to terminate Plaintiff's housing assistance. (Dkt. 3–1 at 22). After “taking into consideration all testimony, reviewing all documents submitted and completing other investigation,” the hearing officer found that (1) the notice to appear “clearly stated that ... Davis acknowledged to the arresting officer that he and [Plaintiff] ‘have been dating for one year and live together,’ ” id.; (2) the incident report “indicates that Mr. Davis and Ms. Sanders' relationship was ‘co-habitants,’ ” id.; and (3) on the arrest form, “Davis acknowledged to the [HCSO] that his street address was ... [Plaintiffs] address,” id. The decision upheld the termination “for the reason that [she] failed to obtain written approval to add Kenneth Davis as an occupant of the assisted unit in violation of her family obligations under the HCV [ i.e., Housing Choice Voucher] Program.” Id.

After the Housing Authority denied Plaintiffs requests to set aside the decision and for a new hearing, Plaintiff brought this action. Plaintiff does not challenge the notice she received or dispute that she was given an opportunity to present evidence at the informal hearing. Rather, Plaintiff contends that she was deprived of her procedural rights guaranteed by 24 C.F.R. 982.555(e)(5)-(6) and the Fourteenth Amendment's Due Process Clause because the hearing officer's finding that Davis resided in the assisted unit was based on unreliable hearsay, that is, the two police reports. ³ Neither party has submitted the police reports.

Standard

A preliminary injunction may be issued if the moving party demonstrates (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.2002). Counsel for Defendant conceded at the hearing that irreparable injury would result to Plaintiff if the injunction does not issue and that the threatened injury to Plaintiff is greater than any harm the injunction would cause Defendants. The issue whether Plaintiff has established a likelihood of success on the merits of her claim.

Discussion

The Housing Authority has the burden of persuasion in Section 8 termination hearings and “must initially present sufficient evidence to establish a prima facie case” that Plaintiff violated her Section 8 obligations in a manner justifying termination. Basco v. Machin, 514 F.3d 1177, 1182 (11th Cir.2008). “Thereafter, the Section 8 participant has the burden of production to show that the individual is a visitor.” Id.

As noted, evidence may be considered at a termination hearing “without regard to admissibility under the rules of evidence applicable to judicial proceedings.” 24 C.F.R. § 982.555(e)(5). However, “[a]lthough the rules of evidence are not strictly applied in administrative hearings, there are due process limits on the extent to which an adverse administrative determination maybe based on hearsay evidence.” Basco, 514 F.3d at 1182. “ ‘[H]earsay may constitute substantial evidence in administrative proceedings as long as factors that...