Florida District Court Decisions Uphold Requirement for Fair-Housing Administrative Remedies
Editor's Note: This article originally appeared in the first quarter, 2017, issue of Multifamily Florida magazine.
By Darren J. Ayoub
During the 2012 and 2016 legislative sessions, the Florida Legislature attempted to amend the Florida Fair Housing Act (FFHA) to allow a person who may have been affected by housing discrimination to file a lawsuit regardless of whether an administrative complaint had first been filed with the Florida Commission on Human Relations or an approved local housing discrimination agency. Despite receiving unanimous support in every committee that voted on the bills, the amendments never passed.
In December 2016, the Third District Court of Appeal, which is based in Miami, decided the issue of whether the FFHA requires a private claimant to engage in a statutory conciliation process, such as mediation, directed by the Commission as a condition that must be met before a lawsuit can be filed under the FFHA. For the second time, a Florida appellate court found that the FFHA indeed requires that a claimant must exhaust his or her administrative remedies before filing a civil lawsuit alleging housing discrimination.
The case of Housing Opportunities Project v. SPV Realty LC (2016 WL 7403656), involved a private, fair-housing, not-for-profit corporation (“HOPE”) and four of its employees posing as testers and inquiring about the availability of housing at Miami apartment communities owned by SPV Realty LC. The case was initially filed in federal court in 2012 and involved the federal Fair Housing Act. It resulted in a confidential settlement agreement in 2013. Then, in 2014, HOPE filed suit in state court alleging SPV Realty breached the settlement agreement. The trial court dismissed the case because HOPE did not engage in the mandatory administrative process with the Commission before filing the civil lawsuit.
In upholding the trial court’s dismissal of the civil lawsuit, the appellate court reached its decision, in part, by employing several standards to interpret the FFHA, the first being plain meaning. The court specifically focused on the plain meaning of Florida Statute 760.34 and found that the language of the statute leads to one conclusion, that a private citizen or entity may not pursue a civil lawsuit for a violation of the FHHA prior to filing an administrative complaint with the Commission and affording the Commission the opportunity to resolve the complaint informally. The second method of statutory interpretation used was the principle that a statute should not be interpreted to render meaningless any portion of its text. The court rationalized that if the FFHA was interpreted to allow civil lawsuits to be filed concurrently with the administrative process, then section four of the statute, which requires that the Commission first attempt voluntary compliance before the aggrieved person may commence a civil lawsuit, would be rendered meaningless. Third, the court used a linguistic canon known as expresio unius est exclusio alterus, which means the expression of one thing implies the exclusion of the other. Under this approach, the court pointed out that the Legislature expressly lists who is not required to exhaust administrative remedies before filing a civil lawsuit, and only the Commission is included. Therefore, all persons (such as the testers) and entities (such as HOPE) must comply with and exhaust the statutory conciliation process before they may file a civil lawsuit.
Thus, the decision reached by the Third District Court of Appeal was in agreement with the Belletete v. Halford, decision in the Fourth District Court of Appeal, which is based in West Palm Beach. That case is the only other Florida case which considered the issue of whether the FFHA contains an administrative exhaustion requirement, but the court did not take the same route to reach the same conclusion as the Third District. The Fourth District Court compared the nearly identical language of the Florida Civil Rights Act (FCRA) to the language of the FFHA and noted that the FCRA had previously been found to require exhaustion of administrative remedies by a claimant before filing a civil lawsuit. Therefore, the court ruled, the FFHA must also require exhaustion of administrative remedies.
Despite two appellate decisions reaching the same conclusion concerning the same law, there is still significant disagreement within the legal community as to whether the FFHA requires exhaustion of administrative remedies before filing a civil lawsuit. In fact, several federal courts in Florida have concluded that exhaustion of the administrative remedy is not required before filing a lawsuit. And even the three judge panel that decided the SPV Realty case was not in complete agreement. The decision was 2-1, with Judge Vance Salter offering a compelling dissenting opinion as to why the court made the wrong decision in finding that the FFHA requires exhaustion of administrative remedies.
This year, the Legislature has already introduced SB 268, which once again seeks to amend the FFHA to allow a person aggrieved by housing discrimination to file a lawsuit without having to first exhaust administrative remedies. The bill would allow an aggrieved party up to two years to file a lawsuit after an alleged discriminatory practice has occurred. Such a change in the law would undoubtedly have a significant negative impact on the multifamily housing industry, including the possibility of landlords having to defend an investigation by the Commission and a civil lawsuit simultaneously. However, if SB 268 meets the same fate as the 2012 and 2016 FFHA bills, then the decisions issued in Belletete and SPV Realty would stand, and a claimant would have to exhaust his or her administrative remedies first before filing a civil lawsuit alleging housing discrimination.
Darren J. Ayoub is an attorney with McCain Barfield PA in West Palm Beach.