What is the FCHR, and What Does This Mean to the Association?

Understanding the Florida Commission on Human Relations (“FCHR”)

By:

Russel E. Klemm, Esq Partner, Litigation Manager

Christine Praria, CP, FRP Lead Litigation Paralegal

I. What is the FCHR?

The Florida Commission on Human Relations (the FCHR), established in 1969, is the state agency responsible for enforcing Florida’s civil rights laws, and preventing discrimination in housing, employment, and public accommodations.  The FCHR also acts as an investigative agency for the U.S. Department of Housing and Urban Development (HUD), in investigating possible violations of the federal Fair Housing Act (FHA) and operates under a “Work-Sharing Agreement” with HUD.  Among other duties, the FCHR investigates, and attempts to resolve, discrimination Complaints brought by Owners, Residents, and potential Owners or Residents, against HOAs and COAs, regarding unlawful housing discrimination.  (Please understand, an FCHR Complaint can be filed against a Community Association, even if the Association is not engaged in rentals in the Community).

II. Where Does the FCHR Get Its Authority?

The FCHR’s legal authority comes from:

• Chapter 760, Florida Statutes, specifically Fla. Stat. §§760.01–760.11 (otherwise known as the “Florida Civil Rights Act”), and Fla. Stat. §§ 760.20–760.37, also known as the “Florida Fair Housing Act,” which mirrors the federal “Fair Housing Act.”  (See below).
• 42 U.S.C. §§ 3601–3619 (the Federal “Fair Housing Act”) – When HUD receives a Complaint filed in a state that has something to do with fair housing issues, that Federal Agency usually delegates the investigation to a designated State Agency.  In the case of Florida, that is the FCHR, as per their “Work Sharing Agreement.”  (See below).
• HUD^[1]-FCHR Worksharing Agreement – This is the document in which HUD (via the EEOC) formally recognizes the FCHR as a (substantially) equivalent agency, thus authorizing it to investigate Complaints that have been filed with either agency, on the State or the Federal level, in Florida.  Either HUD or the FCHR may act as the other’s Agent.

III. What happens when an HOA or COA Is Accused of Discrimination?

Common allegations against HOAs and COAs would include:

• Possible violations of the “Americans with Disabilities Act” (“ADA”), in denying reasonable accommodation or modifications for Residents with disabilities.  (For example: denying a legally permissible service or assistance animal under a “No Pets” policy).
• Enforcing rules or fees in a way that discriminates based on race, religion, sex, familial status, or national origin.  (For example, filing repeated Covenant Violations and fines against a same sex couple, using selective enforcement, which means other Owners in the Association are not being cited or fined for the same violations; or denying a disabled veteran’s application to purchase or rent a home in the Association).
• Retaliating against Residents for exercising fair housing rights.  (For example, filing a civil suit against Complainant Owners after receiving Notice of the FCHR Complaint against the Association, to “punish” or “get even” with the Owner for exercising their right to file the Complaint).

Complaints may be filed directly with the FCHR or HUD, and either Agency may handle the case, depending on the filing and jurisdiction.

IV. The Fair Housing Complaint Process (via HUD or FCHR)

Here’s a breakdown of the typical Complaint process when filed against an HOA or COA:

Step 1: Filing the Complaint

• The Complainant (usually a Resident or an Applicant for residence) files a brief written Complaint.
  • Said Complaint must be submitted within one year of the alleged act of housing discrimination.
  • Filing can be done with HUD or directly with the FCHR, which may cross-file the Complaint between Agencies.
  • The Complaint must include details of the alleged discriminatory act, and identify the party responsible (e.g., the Association, or its Board).

Step 2: Intake and Jurisdictional Review

• The FCHR determines whether the allegations fall under the Florida and/or Federal Fair Housing laws.
  • If the claim is jurisdictionally valid, (i.e, the FCHR is the appropriate Agency to handle the matter), the case proceeds.
  • if not, the Complaint is dismissed or referred elsewhere.

Step 3: Notification and Investigation

• The Respondent (the HOA or COA) is notified of the Complaint that has been filed against them and asked to respond.
• The FCHR assigns an Investigator to request and collect relevant documents, to interview parties, and to evaluate the evidence acquired thereby.  The Agency has 180 days to investigate and issue a determination on a Complaint.  If the FCHR fails to issue a determination within this 180-day period, they must notify the Complainant, who can then proceed to file a lawsuit in Federal or State court.
• Parties may also voluntarily agree to “conciliation” at any stage.  (Conciliation through the FCHR is something like the Mediation process, such as the Pre-Suit Mediation required for HOAs before filing suit in Circuit or County Court).

Step 4: Determination

• Having reviewed all documents presented by both Parties, and having interviewed all appropriate individuals with relevant knowledge about the dispute, the Investigator for the FCHR issues a finding:
  • A finding of “Cause” means the Investigator finds that the evidence presented supports a reasonable belief that discrimination has occurred.  (See 5.a. below for next steps).
  • A finding of “No Cause” means the Investigator has found there is insufficient evidence to support the claim of discrimination.  (See 5.b. below for next steps).

Step 5: Administrative or Judicial Resolution

• If Cause is found, the case may proceed to:
  • A Department of Administrative Hearings (DOAH) Administrative Hearing, or
  • A civil lawsuit, filed by the Complainant in State or Federal Court.
• If No Cause is found, the Complainant may file a Complaint under the procedures set forth in the Florida Administrative Procedure Act (Chapter 120, Fla. Statutes), and may still pursue the case independently in court, within two years of the violation or finding of No Cause (whichever is later).

V. What an FCHR Complaint means for Associations

HOAs, COAs, other Florida Community Associations, and Boards must comply with both state and federal fair housing laws, and with the ADA.  Violations—even unintentional—can lead to:

• Costly investigations – the FCHR Investigation process runs up the Association attorney’s fees, for:
  • reviewing the allegations and responding to the Complaint
  • defending the Association during said Investigation
  • gathering all documents requested by the Investigator that the Association has in its possession, and uploading them to the FCHR website for the Investigator’s use
  • drafting a formal “Position Statement” outlining the Association’s position, and
  • representing the Association during the interviews of its Members.
  • There may be additional civil suit fees and costs, should there be a finding of Cause, or should the Complainant decide to file suit in civil Court within two years after the finding of No Cause.

• Possible government fines (should there be a finding that discrimination has occurred).
• Mandatory retraining
• Public reputational harm

Board Members and Managers should be trained in reasonable accommodations, nondiscrimination policies, and proper documentation protocols, as well as warned against selective enforcement.

VI. Final Thoughts

Directors and Officers of HOA and COA Boards are volunteers, and often have never heard of the FCHR, until the Association receives Notice that a Complaint has been filed.  It can be a hard pill to swallow, as defending against, and refuting, such a Complaint with an attorney’s guidance, assistance, and representation, can be costly.  Such attorney’s fees are usually not recoverable, and prevailing in the Investigation does not mean the Complainant won’t still file suit in Civil Court, within the two-year limit.

Unfortunately, unfair and unwarranted discrimination Complaints happen all the time.  That just seems to be part of the cost of doing business as an Owners Association.  Establishing reserve funds to cover the non-recoverable fees and costs associated with the defense of frivolous Complaints is a prudent practice for all Florida Community Associations.

If your Association has been notified of a HUD/FCHR Complaint against it, or your Board has concerns about how to avoid such Complaints, please contact Clayton & McCulloh, P.A. to make an appointment to speak with one of our attorneys.  You can contact David Batan, Coordinator of Client Services (dbatan@clayton-mcculloh.com), or if you are an existing C&M client, contact Arlene Ring, Director of Public Relations (aring@clayton-mcculloh.com), if you are not currently an active client to set up a consultation.

^[1]  Under authority of the U.S. Equal Employment Opportunity Commission (“EEOC”).