The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 374
INTRODUCER: Senator Rouson
SUBJECT: Housing Discrimination
DATE: February 3, 2020 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Stallard Cibula JU Favorable
2. Ponder McVaney GO Favorable
3. Stallard Phelps RC Favorable
I. Summary:
SB 374 amends ss. 760.34, F.S., and 760.35, F.S., to allow a person alleging housing
discrimination under the Florida Fair Housing Act (FFHA) to file a civil action regardless of
whether the aggrieved person has exhausted his or her administrative remedies. Accordingly, the
aggrieved person may file a civil action regardless of whether:
 He or she has filed a complaint with the Florida Commission on Human Relations
(Commission);
 The Commission has resolved a complaint (if the aggrieved person chose to file one); or
 Any particular amount of time has passed since the aggrieved person filed a complaint with
the Commission.
The bill prohibits an aggrieved person from filing a civil action under the FFHA in two
instances: (i) if the claimant has consented to a conciliation agreement obtained by the
Commission, other than to enforce the terms of the conciliation agreement; or (i) if an
administrative law judge has commenced a hearing.
The bill, in making the FFHA substantially equivalent to the federal Fair Housing Act, enhances
the opportunity for the Commission to continue to receive its federal funding of approximately of
approximately $597,189 (based on a six-year average of funding).
The bill takes effect upon becoming law.
II. Present Situation:
The Florida Commission on Human Relations
The Commission was established by the Legislature in 1969 and is charged with enforcing the
state’s civil rights laws. The Commission investigates complaints of discrimination under the
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Florida Fair Housing Act of 1983, the Florida Civil Rights Act of 1992, and the Whistle-
Blower’s Act of 1999. The Commission is certified as a “substantially equivalent” agency by the
United States Department of Housing and Urban Development (HUD) and, through annual work
share agreements, receives and investigates housing discrimination complaints referred by HUD.
HUD provides funding to the Commission through the Fair Housing Assistance Program
(FHAP) for processing complaints, training, technical assistance, and creating and maintaining
data information systems.
The Florida Fair Housing Act
The FFHA is modeled after the federal Fair Housing Act.1 The FFHA prohibits a person from
refusing to sell or rent, or otherwise make unavailable, a dwelling to any person because of race,
color, national origin, sex, handicap, familial status, or religion.2 In addition, the FFHA affords
protection to persons who are pregnant or in the process of becoming legal custodians of children
of 18 years of age or younger, or persons who are themselves handicapped or associated with a
handicapped person.3
A person alleging discrimination under the FFHA has one year after the discriminatory housing
practice to file a complaint with the Commission.4 The Commission has 100 days after receiving
the complaint to complete its investigation and issue a determination.5 The Commission may also
decide to resolve the complaint and eliminate or correct the discriminatory housing practice
through conciliation.6 If, the Commission is unable to obtain voluntary compliance within 180
days after a complaint is filed, the aggrieved person may initiate a civil action or file a petition
for an administrative determination.7 If the Commission finds reasonable cause to believe that
housing discrimination has occurred, the aggrieved person may request that the Attorney General
bring an action against the respondent.8 A civil action must be commenced within two years after
the alleged discriminatory act occurred.9 The court may “continue” (this means the case is held
in abeyance pending the settlement) a civil case if conciliation efforts by the Commission or by
the local housing agency are likely to result in a satisfactory settlement.10 If the court finds that a
discriminatory housing practice has occurred, the court must issue an order prohibiting the
practice and providing affirmative relief.11
1
Chapter 760, part II, F.S., is the Florida Fair Housing Act. Florida Fair Housing Commission, Housing Act,
https://fchr.myflorida.com/history-of-the-florida-commission-on-human-relations (last visited Dec. 4, 2019),
2
Section 760.23(1), F.S.
3
Sections 760.23(6)-(9), F.S.
4
Section 760.34(1) and (2), F.S.
5
Section 760.34(1), F.S.
6
Id.
7
Section 760.34(4), F.S.
8
Id.
9
Section 760.35(1), F.S.
10
Id.
11
Section 760.35(2), F.S.
BILL: SB 374 Page 3
Remedies available under the FFHA include fines and actual punitive damages.12 The court may
also award reasonable attorney fees and costs to the Commission.13
If the Commission is unable to obtain voluntary compliance or has reasonable cause to believe
that a discriminatory act has occurred, the Commission may institute an administrative
proceeding. Alternatively, the aggrieved person may request administrative relief under
ch. 120, F.S., within 30 days after receiving notice that the Commission has concluded its
investigation.14
The Commission, or any local agency certified as substantially equivalent, may institute a civil
action in an appropriate court if it is unable to obtain voluntary compliance with the local fair
housing law.15 The local agency does not have to petition for an administrative hearing or
exhaust its administrative remedies prior to bringing civil action.16
The Federal Fair Housing Act
Substantially Equivalent Agencies
HUD administers and enforces the federal Fair Housing Act (FHA).17 The FHA recognizes that a
state or local government may also enact laws or ordinances prohibiting unlawful housing
discrimination.18 HUD may certify a state or local government agency as “substantially
equivalent” if HUD determines that the state or local law and the FHA are substantially
equivalent with respect to:
 The substantive rights protected by such agency in the jurisdiction with respect to which
certification is to be made;
 The procedures followed by such agency;
 The remedies available to such agency; and
 The availability of judicial review of such agency’s action.19
HUD had developed a two-step process of substantial equivalency certification. The first step
considers the adequacy of the law, meaning that the law which the agency administers facially
provides rights, procedures, remedies, and the availability of judicial review that are substantially
equivalent to those provided in the FHA.20 A determination of the adequacy of a state or local
fair housing law “on its face” is intended to focus on the meaning and intent of the text of the
law, as distinguished from the effectiveness of its administration. Accordingly, this
determination is not limited to an analysis of the literal text of the law. Regulations, directives,
12
Fines are capped in a tiered system based on the number of prior violations of the Fair Housing Act: up to $10,000 if the
respondent has no prior findings of guilt under the Fair Housing Act; up to $25,000 if the respondent has had one prior
violation of the Fair Housing Act; and up to $50,000, if the respondent has had two or more violations of the Fair Housing
Act. Section 760.34(7)(b), F.S.
13
Section 760.34(7)(c), F.S.
14
Section 760.35(3), F.S.
15
Sections 760.22(9) and 760.34(8), F.S.
16
Section 760.34(8), F.S.
17
42 U.S.C. § 3601, et seq.
18
42 U.S.C. § 3610.
19
Id.
20
24 C.F.R. § 115.201.
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rules of procedure, judicial decisions, or interpretations of the law by competent authorities will
be considered in making the determination.21 The second step considers the adequacy of
performance of the law, meaning that in operation the fair housing law provides rights,
procedures, remedies, and the availability of judicial review that are substantially equivalent to
those provided in the FHA.22
If a housing discrimination complaint is filed with HUD under the FHA and the complaint falls
within the jurisdiction of a substantially equivalent agency, HUD must refer the complaint to the
local or state agency and may take no further action, except under limited circumstances.23
The Commission serves as the certified substantially equivalent HUD agency in Florida.24
Through annual work-share agreements with HUD, the Commission accepts and investigates
housing discrimination cases from HUD. According to the Commission’s Fiscal Year 2010-11
through Fiscal Year 2017-18 Annual Reports, housing complaints were, on average, 15 percent
of all complaints received by the Commission.25
The Fair Housing Assistance Program
A substantially equivalent agency is eligible for federal funding through the Fair Housing
Assistance Program (FHAP).26 FHAP permits HUD to reimburse state and local agencies for
services that further the purposes of the FHA. Financial assistance provides support for:
 The processing of dual-filed complaints;
 Training under the FHA and the agencies’ fair housing law;
 The provision of technical assistance;
 The creation and maintenance of data and information systems;
 The development and enhancement of education and outreach projects, special enforcement
efforts, partnership initiatives, and other fair housing projects.27
The Commission is reimbursed by HUD for closing housing cases, through deposit from HUD
into the Human Relations Commission Operating Trust Fund within the Commission. In Fiscal
Year 2018-2019, these payments totaled $507,061 for the 2018 grant period. This amount was
45.99 percent of the Commission’s Operating Trust Fund for that year.28 In Fiscal Year 2017-18,
21
24 C.F.R. § 115.204.
22
24 C.F.R. § 115.201.
23
42 U.S.C. 3610.
24
HUD additionally certified as substantially equivalent the Broward County Office of Equal Opportunity, Jacksonville
Human Rights Commission, Office of Community Affairs – Human Relations Department (Orlando), Palm Beach County
Office of Equal Opportunity, Pinellas County Office of Human Rights, and City of Tampa Office of Community Relations.
United States Department of Housing and Urban Development, Fair Housing Assistance Program (FHAP) Agencies,
https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP/agencies#FL (last visited Dec. 4, 2019).
25
Florida Commission on Human Relations, Annual Reports, available at https://fchr.myflorida.com/annual-reports/ (last
visited Dec. 4, 2019)
26
United States Department of Housing and Urban Development, Fair Housing Assistance Program (FHAP),
https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP (last visited Dec. 4, 2019).
27
24 C.F.R. § 115.300.
28
Email from Christopher Turner, Deputy Director of External and Legislative Affairs, Florida Commission on Human
Relations (Oct. 31, 2019) (on file with the Senate Committee on Judiciary).
BILL: SB 374 Page 5
these payments totaled $611,721, which was 49.89 percent of the Commission’s Operating Trust
Fund.29 The six-year average of trust fund revenue received from HUD is $597,189.
Exhaustion of Administrative Remedies
A series of recent judicial decisions regarding the applicability of administrative remedies under
the FFHA have threatened the Commission’s status as a substantially equivalent HUD agency.
In 2004, the Fourth District Court of Appeal held in Belletete v. Halford that an aggrieved person
must first exhaust administrative remedies under the FFHA before commencing a civil action in
state court, citing the doctrine of exhaustion of administrative remedies.30 The Court’s holding
was not based upon an analysis of the FFHA, which does not explicitly require exhaustion of
administrative remedies. Rather, the court provided a brief analysis of what it considered to be an
analogous provision of the Florida Civil Rights Act. The Belletete holding has been criticized by
the Florida Attorney General, and has been rejected by the U.S. District Court for the Southern
District of Florida.31 Nevertheless, Florida state courts, both in and outside of the Fourth District
Court of Appeal, have adopted the Belletete holding, and dismiss claims brought under the
FFHA where the plaintiff has not exhausted the administrative process.32
In ongoing discussions since 2008, HUD has informed the Commission that the judicial
interpretation of the FFHA in Belletete requiring the exhaustion of administrative remedies
renders the Florida law fundamentally inconsistent with federal law. The FHA explicitly allows
an aggrieved person to commence a civil action whether or not a complaint has been filed with
HUD and without regard to the status of any such complaint.33 Efforts to amend the FFHA
during the 2014,34 2016,35 2018,36 and 201937 legislative sessions were unsuccessful and courts
continue to apply the Belletete rule in FFHA civil actions.
On July 2, 2015, HUD notified the Commission that it would suspend the Commission’s
participation in FHAP if the FFHA was not amended by January 25, 2016, to overcome the
judicially-created requirement that a plaintiff exhaust their administrative remedies as a
29
Email from Christopher Turner, Deputy Director of External and Legislative Affairs, Florida Commission on Human
Relations (April 5, 2019) (on file with the Senate Committee on Judiciary).
30
Belletete v. Halford, 886 So. 2d 308, 310 (Fla. 4th DCA 2004); See also Fla. Welding & Erection Serv., Inc. v. Am. Mut.
Ins. Co. of Boston, 285 So. 2d 386, 389-90 (Fla. 1973). The doctrine of the exhaustion of administrative remedies is the
principle that if an administrative remedy is provided by statute, a claimant must first seek relief from the administrative body
before judicial relief is available. Black’s Law Dictionary (10th ed. 2014), exhaustion of remedies.
31
In Milsap v. Cornerstone Residential Management, Inc., 2008 WL 1994840 (S.D. Fla. 2008), the United States District
Court for the Southern District of Florida, relying on Belletete as the only state court case on the issue, dismissed a familial
status claim brought under the FFHA for failure to exhaust administrative remedies. On reconsideration, in which the Florida
Attorney General intervened and argued Belletete was wrongly decided, the court reversed itself and reinstated the FFHA
claims. See, 2010 WL 427436 (S. D. Fla. 2010).
32
Sun Harbor Homeowners Ass’n v. Bonura, 95 So. 3d 262, 267 (Fla. 4th DCA 2012); State v. Leisure Village, Inc., 40 Fla.
L. Weekly D934 (Fla. 4th DCA 2015); HOPE v. SPV Realty, L.C., Case No. 14-32184-CA-01 (Fla. 11th Cir. Ct. April 30,
2015).
33
42 U.S.C. § 3613.
34
SB 410 (Senator Braynon) and HB 453 (Representative Watson).
35
SB 7008 (Senate Governmental Oversight and Accountability) and HB 339 (Representative Rouson).
36
SB 306 (Senator Rouson) and HB 853 (Representative Davis).
37
32 SB 958 (Senator Rouson) and HB 565 (Representatives Williams and Davis).
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condition precedent to filing a housing discrimination claim under the FFHA.38 In light of the
legislative calendar, HUD agreed to extend the deadline to amend the FFHA until March 12,
2016.39
On March 16, 2016, HUD recognized pending litigation in the Third District Court of Appeal 40
and vowed to refrain from making any decision regarding suspension of the Commission's
participation in FHAP during the pendency of the judicial proceedings.41 In December 2016, the
Third District Court of Appeal applied the Belletete rule and held that a plaintiff must exhaust all
administrative remedies before commencing an action in civil court, determining that "[w]hether
the [Florida Fair Housing Act] should be amended to conform precisely to the federal [Fair
Housing Act] is a matter for the Legislature."42
On August 8, 2019, HUD notified the Commission that the FFHA, as interpreted by the courts, is
not substantially equivalent to the federal Fair Housing Act.43 The