FAIR HOUSINGFAIR HOUSING

Protection against unlawful practices in Protection against unlawful practices in the housing marketthe housing market

The Federal Housing AdministrationThe Federal Housing Administration

The Federal Fair Housing ActThe Federal Fair Housing Act

Students should use my Planning Law Web Site Students should use my Planning Law Web Site for a complete overview of the FFHA. This for a complete overview of the FFHA. This presentation is a short synopsis of the material presentation is a short synopsis of the material contained on the web site.contained on the web site.

OverviewOverview

The FFHA is actually a series of amended acts The FFHA is actually a series of amended acts that date back to the original Model Cities Act – that date back to the original Model Cities Act – 1966 and the Civil Rights Act of 1968 that sought 1966 and the Civil Rights Act of 1968 that sought to prevent racial discrimination in housing to prevent racial discrimination in housing practicespractices

The act is cited as 42 USC 5301 as amendedThe act is cited as 42 USC 5301 as amended

AmendmentsAmendments

Amendments to the FFHA broadened the sphere Amendments to the FFHA broadened the sphere of regulation. Once the Act was limited to race, of regulation. Once the Act was limited to race, color, creed, and origincolor, creed, and origin

The Act now includes protection for gender, The Act now includes protection for gender, children, elderly, and persons with disabilitieschildren, elderly, and persons with disabilities

Targeted PracticesTargeted Practices

General Plan Practices – failure and/or conscious effort of General Plan Practices – failure and/or conscious effort of the local community to provide an affordable mix of the local community to provide an affordable mix of housing for its current or expanding populationhousing for its current or expanding population

Regulatory Practices – Often called a “Pattern and Practice Regulatory Practices – Often called a “Pattern and Practice Case” were there is a discernable pattern and practice of Case” were there is a discernable pattern and practice of local government using its regulatory power to prevent, local government using its regulatory power to prevent, frustrate, or impede reasonably affordable housingfrustrate, or impede reasonably affordable housing

Targeted PracticesTargeted Practices

Private Practices – the use of private restrictions, practices, Private Practices – the use of private restrictions, practices, threats, harassment, and other means to bar the entry of threats, harassment, and other means to bar the entry of persons into the housing marketpersons into the housing market

Sales and Marketing Practices – The majority of persons in Sales and Marketing Practices – The majority of persons in the U.S. purchase homes through brokers or real state the U.S. purchase homes through brokers or real state agents. Unfair practices such as bait and switch, block agents. Unfair practices such as bait and switch, block busting, advertising, denying access to multiple listing, are busting, advertising, denying access to multiple listing, are favorite toolsfavorite tools

HistoryHistory

The FFHA is the primary Federal Law addressing The FFHA is the primary Federal Law addressing discrimination. Roots of the act date to the Model discrimination. Roots of the act date to the Model Cities Act of 1966 but the first act with “teeth” Cities Act of 1966 but the first act with “teeth” was the Title VIII of the Civil Rights Act of 1968was the Title VIII of the Civil Rights Act of 1968

What Is ProhibitedWhat Is Prohibited

Actions based on refusal to bar housing Actions based on refusal to bar housing opportunities because of Race, Color, Creed, opportunities because of Race, Color, Creed, National Origin, Gender, Familiar States, Age, National Origin, Gender, Familiar States, Age, DisabilityDisability

Collectively, these are know as the covered Collectively, these are know as the covered protectionsprotections

What Is CoveredWhat Is Covered

Refusal to rent or sell after a bona fide offer based on …Refusal to rent or sell after a bona fide offer based on … Discrimination in terms of conditions of sale or rental Discrimination in terms of conditions of sale or rental

because of …because of … Make, print, publish, make statements or advertise any Make, print, publish, make statements or advertise any

preference because of …preference because of … Represent to any person because of … that a covered Represent to any person because of … that a covered

dwelling unit is not available for sale or rent when it is dwelling unit is not available for sale or rent when it is actually availableactually available

Covered TermsCovered Terms

Engage in block busting or similar practicesEngage in block busting or similar practices Different provisions such as security deposits or Different provisions such as security deposits or

down paymentsdown payments Limiting the use of privileges or facilitiesLimiting the use of privileges or facilities Engaging in sales because of favors of Engaging in sales because of favors of

general/sexual harassment (The Packwood general/sexual harassment (The Packwood Amendment)Amendment)

SteeringSteering

Discouraging … from inspecting, purchasing, renting Discouraging … from inspecting, purchasing, renting because of the characteristics of the person or the because of the characteristics of the person or the neighborhoodneighborhood

Exaggerating drawbacks or not informing purchasers of the Exaggerating drawbacks or not informing purchasers of the desirable features of the dwelling, neighborhood, or desirable features of the dwelling, neighborhood, or developmentdevelopment

Communicating that …”you” would not be comfortable or Communicating that …”you” would not be comfortable or compatible with existing residentscompatible with existing residents

PracticesPractices

Discharging or taking adverse action against an Discharging or taking adverse action against an employee for refusing to participate in a employee for refusing to participate in a discriminatory practicediscriminatory practice

Refusing to provide municipal services or Refusing to provide municipal services or insurance, or loans (redlining) because of …insurance, or loans (redlining) because of …

Employing city codes or regulating to segregate Employing city codes or regulating to segregate applicants or renters because of …applicants or renters because of …

Providing inaccurate or untrue informationProviding inaccurate or untrue information

DisabilityDisability

Provided in the 1988 amendments to the FFHAProvided in the 1988 amendments to the FFHA Unlawful to discriminate because of a handicapUnlawful to discriminate because of a handicap Handicap is a physical or mental impairment Handicap is a physical or mental impairment

which substantially limits one or more of life's which substantially limits one or more of life's activities.activities.

Ugly Is Not A DisabilityUgly Is Not A Disability

Nor Is Being StupidNor Is Being Stupid

Covered Requirements for Covered Requirements for Multi-Family after 1991Multi-Family after 1991

At least one building entrance on a handicapped accessible At least one building entrance on a handicapped accessible route – ANSI 1.117route – ANSI 1.117

A covered building contains four or more unitsA covered building contains four or more units Disabled persons must be allowed to make reasonable Disabled persons must be allowed to make reasonable

modification to the rental unit at their own expense to gain modification to the rental unit at their own expense to gain full benefit of the unit. Renter must also restore at their full benefit of the unit. Renter must also restore at their own expenseown expense

Owners must provide handicapped routes, door openings, Owners must provide handicapped routes, door openings, fixtures, hand rails in bathroomsfixtures, hand rails in bathrooms

Some Exemptions to the FFHASome Exemptions to the FFHA

Housing intended to be occupied solely by elderly Housing intended to be occupied solely by elderly persons with certain conditionspersons with certain conditions

Act does not apply to religious or certain non-Act does not apply to religious or certain non-profit organizations when they limit the sale or profit organizations when they limit the sale or rental to persons of a particular faith or rental to persons of a particular faith or organization, provided that the limitation is not organization, provided that the limitation is not based on ::::based on ::::

Does not apply to private sales when owner does Does not apply to private sales when owner does not have an interest in more than three single not have an interest in more than three single family homesfamily homes

The Bottom LineThe Bottom Line

All accessibility and modification issues based on All accessibility and modification issues based on

a disability fall under the rule of a disability fall under the rule of reasonable reasonable accommodationaccommodation

Accommodation – The LanguageAccommodation – The Language

Section 3604(f)(1) of the FHA provides in relevant part that Section 3604(f)(1) of the FHA provides in relevant part that it is unlawful "to discriminate in the sale or rental, or to it is unlawful "to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . a person buyer or renter because of a handicap of . . . a person residing in or intending to reside in that dwelling after it is residing in or intending to reside in that dwelling after it is sold, rented, or made available.“sold, rented, or made available.“

Section 3604(f)(3)(B) states, "For purposes of this Section 3604(f)(3)(B) states, "For purposes of this subsection, discrimination includes . . . a refusal to make subsection, discrimination includes . . . a refusal to make reasonable accommodations in rules, policies, practices, or reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a afford such person equal opportunity to use and enjoy a dwelling . . .dwelling . . .

EnforcementEnforcement

Courts, local housing offices, and Department of HUDCourts, local housing offices, and Department of HUD Complaints must be filed in one yearComplaints must be filed in one year After filing a practice complaint HUD has 10 days to notifyAfter filing a practice complaint HUD has 10 days to notify Investigations must be completed within one yearInvestigations must be completed within one year HUD make use conciliationHUD make use conciliation Relief may be based on monetary damages, fines, attorney Relief may be based on monetary damages, fines, attorney

fees or orders to ban future practicesfees or orders to ban future practices

PenaltiesPenalties

Penalties can range from $10,000 to $50,000 depending on the Penalties can range from $10,000 to $50,000 depending on the number of offensesnumber of offenses

Failure to comply can result in penalties up to $100,000Failure to comply can result in penalties up to $100,000

The Fair Housing CasesThe Fair Housing Cases

Parking for

Disabled Persons

Only

Ultimate Disability Parking Ultimate Disability Parking SpaceSpace

Gittelman v Woodhaven Gittelman v Woodhaven Condominiums 1997Condominiums 1997

A condominium owner in Old Bridge N.J. requested exclusive use of a parking space to accommodate his disability

The condominium association refused to grant his request because doing so would diminish the other unit owner’s undivided interests in common areas, which was prohibited under state law

The Master Deed expressly provides that parking spaces in the Condominium are common elements for the non-exclusive use of the unit owners

Circuit Court of AppealsCircuit Court of Appeals

The court held that the condominium association should have granted the accommodation even though the association members voted against it because the condominium association was the entity responsible for making sure that the condominium rules were enforced in accordance with the FHAA, and for taking whatever affirmative steps were necessary to ensure compliance with federal law.

The court issued a strongly worded opinion in which it refused to allow the condominium association to rely on the contradictory state law and the private agreement among condominium owners to excuse its refusal to make a reasonable accommodation.

Case SignificanceCase Significance

This case presents a strong statement regarding the Fair Housing Act’s requirement that an individual’s right to be free from discrimination sometimes supersedes private property interests and state law.

Brandt v ChebanseBrandt v Chebanse

Mrs. Brandt is a residential developerMrs. Brandt is a residential developer She builds a triplex and adapts one unit for her She builds a triplex and adapts one unit for her

handicapped husband for which the Village handicapped husband for which the Village granted her a variance since the land was zoned granted her a variance since the land was zoned single family residentialsingle family residential

She sought another variance for a four unit She sought another variance for a four unit apartment at the same intersection and planned apartment at the same intersection and planned to equip the bottom units for handicapped rentalto equip the bottom units for handicapped rental

Mrs. BrandtMrs. Brandt

BasisBasis

The Village offered her an alternative location for The Village offered her an alternative location for the 4 plex but Mrs. Brandt refusedthe 4 plex but Mrs. Brandt refused

She sues under Section 4, Title VIII of the Fair She sues under Section 4, Title VIII of the Fair Housing Act. She says that the Village was bound Housing Act. She says that the Village was bound to make reasonable accommodation for the to make reasonable accommodation for the disabled in its zoning laws and that they failed to disabled in its zoning laws and that they failed to do sodo so

The trial court ruled in favor of the VillageThe trial court ruled in favor of the Village

The Appeals CourtThe Appeals Court

What this case comes down to is:What this case comes down to is: A claim that the Fair Housing Act renders all A claim that the Fair Housing Act renders all

single-family zoning unlawful whenever the single-family zoning unlawful whenever the developer is willing to make the units on the first developer is willing to make the units on the first floor accessible to persons in wheelchairsfloor accessible to persons in wheelchairs

Actually, the claim is even broader. Since March Actually, the claim is even broader. Since March 1991 the Fair Housing Act has required 1991 the Fair Housing Act has required developers to make the first floor units of all four-developers to make the first floor units of all four-unit residential buildings handicapped-accessible.unit residential buildings handicapped-accessible.

The Bottom LineThe Bottom Line

What Mrs. Brandt is asking for is that the What Mrs. Brandt is asking for is that the court invalidate single family zoning as a court invalidate single family zoning as a municipal toolmunicipal tool

The Fair Housing Act does not require this. The Fair Housing Act does not require this. It only requires that IF the community It only requires that IF the community allows a developer to build a four unit allows a developer to build a four unit apartment, the first floor must be apartment, the first floor must be accessibleaccessible

What Does This Case SayWhat Does This Case Say

It reminds us that there are in fact limits as to how It reminds us that there are in fact limits as to how far courts will allow groups to wrap themselves in far courts will allow groups to wrap themselves in the mantle of the Fair Housing Act in an attempt to the mantle of the Fair Housing Act in an attempt to avoid municipal zoning restrictions. Developers avoid municipal zoning restrictions. Developers seeking to use the Act as a sword to cut through seeking to use the Act as a sword to cut through municipal restrictions in multiple family housing municipal restrictions in multiple family housing had better try a new approach. The court had better try a new approach. The court concluded: concluded:

– Unless the Fair Housing Act has turned Unless the Fair Housing Act has turned the entire United States into a multi-family the entire United States into a multi-family dwelling zone, Brandt must lose. dwelling zone, Brandt must lose. It doesn't, so she does." It doesn't, so she does."

Leaves Town and Moves to the Leaves Town and Moves to the CountryCountry

Oxford House AgainOxford House Again

U.S. v Palantine, ILU.S. v Palantine, IL– Palatine permits group homes in its’ single family zoning Palatine permits group homes in its’ single family zoning

district but restricts them to eight residents and two district but restricts them to eight residents and two paid, professional staff in a facility certified by the Statepaid, professional staff in a facility certified by the State

– Oxford House operates a facility in Palatine for Oxford House operates a facility in Palatine for recovering alcoholics but it contains 11 occupants and recovering alcoholics but it contains 11 occupants and the staff are not certified.the staff are not certified.

BackgroundBackground

When Oxford house first leased the facility they When Oxford house first leased the facility they were aware that they did not meet the city’s code were aware that they did not meet the city’s code for group homesfor group homes

Later, the City amended its code to include a Later, the City amended its code to include a special use permit in single family districts for special use permit in single family districts for group homes of nine or more persons and for group homes of nine or more persons and for untrained staffuntrained staff

Oxford House was cited by the City for Oxford House was cited by the City for registration violations and for Life Safety Code registration violations and for Life Safety Code violationsviolations

Current ActionCurrent Action

Oxford House requests that the city give them a Oxford House requests that the city give them a reasonable accommodation and waive all code reasonable accommodation and waive all code enforcement.enforcement.

Oxford House refuses to apply for a special use Oxford House refuses to apply for a special use permitpermit

The trial court issued an injunction against the The trial court issued an injunction against the City and prevented them from evicting its City and prevented them from evicting its residentsresidents

Appeals Court ReviewAppeals Court Review

First, Oxford House’ allegation that the city did First, Oxford House’ allegation that the city did not grant them reasonable accommodation is not not grant them reasonable accommodation is not ripe because they never invoked the procedures ripe because they never invoked the procedures that would have allowed the City a chance for that would have allowed the City a chance for reviewreview

However, like Cleburne, Oxford House claims that However, like Cleburne, Oxford House claims that they were singled out to apply for a special use they were singled out to apply for a special use permit and that this was contrary to the permit and that this was contrary to the provisions of the FFHA.provisions of the FFHA.

Oxford House’s ReplyOxford House’s Reply

Part of plaintiff's argument, however, is that Part of plaintiff's argument, however, is that requiring Oxford House-Mallard to utilize the requiring Oxford House-Mallard to utilize the procedures for obtaining a special use approval is procedures for obtaining a special use approval is itself a failure on the part of the Village to make a itself a failure on the part of the Village to make a reasonable accommodation to the needs of the reasonable accommodation to the needs of the handicappedhandicapped

This claim is currently ripe. Plaintiff argues that This claim is currently ripe. Plaintiff argues that requiring the residents of Oxford House-Mallard to requiring the residents of Oxford House-Mallard to undergo a public hearing on their proposed undergo a public hearing on their proposed special use would subject them to "a firestorm of special use would subject them to "a firestorm of vocal opposition within the neighborhood, that in vocal opposition within the neighborhood, that in turn would stigmatize the residents and increase turn would stigmatize the residents and increase the chances of a relapse.the chances of a relapse.

Appeals Court ReplyAppeals Court Reply

Public input is an important aspect of municipal decision Public input is an important aspect of municipal decision making; we cannot impose a blanket requirement that making; we cannot impose a blanket requirement that cities waive their public notice and hearing requirements in cities waive their public notice and hearing requirements in all cases involving the handicapped.all cases involving the handicapped.

Even though Palatine's procedures do not themselves Even though Palatine's procedures do not themselves violate the FFHA, Oxford need not resort to them if it is violate the FFHA, Oxford need not resort to them if it is manifestly futile. The Village has an outstanding record in manifestly futile. The Village has an outstanding record in responding to the needs of the handicapped, including responding to the needs of the handicapped, including individuals with substance-abuse problems. Indeed, the individuals with substance-abuse problems. Indeed, the Village "has made numerous zoning changes in the face of Village "has made numerous zoning changes in the face of community opposition" in order to accommodate the community opposition" in order to accommodate the handicapped. handicapped.

ConclusionConclusion

In a case such as this, where plaintiff's sole In a case such as this, where plaintiff's sole argument is that the Village failed to make a argument is that the Village failed to make a reasonable accommodation under the Act, the reasonable accommodation under the Act, the Village must be afforded an opportunity to make Village must be afforded an opportunity to make such an accommodation pursuant to its own such an accommodation pursuant to its own lawful procedures--unless it is clear that the result lawful procedures--unless it is clear that the result of such procedures is foredoomed, which is not of such procedures is foredoomed, which is not the case here--before plaintiff will have a ripe the case here--before plaintiff will have a ripe claim. The preliminary injunction is vacated and claim. The preliminary injunction is vacated and the case is remanded to the district court with the case is remanded to the district court with instructions to dismiss it. instructions to dismiss it.

Krueger v ComoKrueger v Como

Violation of Section 3601 of Title 42 which Violation of Section 3601 of Title 42 which includes sexual harassmentincludes sexual harassment

In law, verbal or physical behavior of a sexual In law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of nature, aimed at a particular person or group of people, especially in the workplace or in people, especially in the workplace or in academic or other institutional settings, that is academic or other institutional settings, that is actionable actionable

BackgroundBackground

In 1992, Debbie Maze was living with her two In 1992, Debbie Maze was living with her two children, ages four and three, in her sister's two-children, ages four and three, in her sister's two-bedroom apartment, also home to the sister's bedroom apartment, also home to the sister's boyfriend and four children.boyfriend and four children.

So when she saw a "for rent“ sign on an So when she saw a "for rent“ sign on an apartment owned by Lyle Krueger, she inquired apartment owned by Lyle Krueger, she inquired within and found Krueger, who gave her a rental within and found Krueger, who gave her a rental application and suggested they meet the next application and suggested they meet the next morning for breakfast.morning for breakfast.

The Breakfast MeetingThe Breakfast Meeting

At the breakfast meeting, it became apparent At the breakfast meeting, it became apparent that Maze could not afford the three-bedroom, that Maze could not afford the three-bedroom, $547-a month apartment, for her housing $547-a month apartment, for her housing voucher provided only $395 for a two-bedroom voucher provided only $395 for a two-bedroom apartment, to which she was expected to add a apartment, to which she was expected to add a personal contribution of $52 per month.personal contribution of $52 per month.

Krueger refuses to rent and the meeting is over. A Krueger refuses to rent and the meeting is over. A few days later he traces Ms. Maze through her few days later he traces Ms. Maze through her sister and proposes another breakfast meeting.sister and proposes another breakfast meeting.

The Second BreakfastThe Second Breakfast

Krueger told Maze that she could pay money on Krueger told Maze that she could pay money on the side or "fool around or something" to make up the side or "fool around or something" to make up the $100 shortfall. She declined this payment the $100 shortfall. She declined this payment scheme, but Krueger nevertheless agreed to rent scheme, but Krueger nevertheless agreed to rent her the apartment. her the apartment.

Maze did not own a car, and Krueger gave her a Maze did not own a car, and Krueger gave her a ride home from their meeting. In his car, Krueger ride home from their meeting. In his car, Krueger rubbed Maze's thigh and predicted, "we're going rubbed Maze's thigh and predicted, "we're going to be close." Maze asked Krueger not to touch to be close." Maze asked Krueger not to touch her.her.

Home at Last?Home at Last?

Krueger and Maze went to the Kenosha Housing Krueger and Maze went to the Kenosha Housing Authority to sign a rental agreement. Authority to sign a rental agreement.

In the elevator on the way to the office, Krueger In the elevator on the way to the office, Krueger touched Maze, rubbed her, and tried to kiss her. touched Maze, rubbed her, and tried to kiss her. She told him to stop, a request he greeted with She told him to stop, a request he greeted with laughter. laughter.

After the two had signed the lease, an undaunted After the two had signed the lease, an undaunted Krueger once again prophesied that he and Maze Krueger once again prophesied that he and Maze "were going to be real close." Maze was so "were going to be real close." Maze was so disturbed by Krueger's behavior that, later the disturbed by Krueger's behavior that, later the same day, she returned alone to the Housing same day, she returned alone to the Housing Authority.Authority.

Housing Authority – Section 8Housing Authority – Section 8

She reported Krueger's advances to a Housing She reported Krueger's advances to a Housing Authority official, Paula Lattergrass, who urged Authority official, Paula Lattergrass, who urged her not to take the apartment. Maze felt that she her not to take the apartment. Maze felt that she had few alternatives other than to move into the had few alternatives other than to move into the apartment, but she did, at the suggestion of apartment, but she did, at the suggestion of Lattergrass, file complaints against Krueger with Lattergrass, file complaints against Krueger with the Urban League and HUD.the Urban League and HUD.

The Next MonthThe Next Month

After Ms. Maze moves in Krueger continues to After Ms. Maze moves in Krueger continues to make advances, sometimes in front of her make advances, sometimes in front of her childrenchildren

Krueger tells her that he is losing money on the Krueger tells her that he is losing money on the apartment, but invites her out for drinksapartment, but invites her out for drinks

Ms. Maze tell him that she “does not date white Ms. Maze tell him that she “does not date white men.”men.”

After the Fall OutAfter the Fall Out

Krueger’s relationship deterioratesKrueger’s relationship deteriorates Maze no longer makes contact with Krueger and Maze no longer makes contact with Krueger and

sends the rent checks to the Housing Agency for sends the rent checks to the Housing Agency for forwardingforwarding

Maze files a series of sexual harassment reports Maze files a series of sexual harassment reports to HUDto HUD

Krueger starts sending letters suggesting that Krueger starts sending letters suggesting that Maze moveMaze move

The Battle is FormedThe Battle is Formed

Maze children were sick which proved to be lead Maze children were sick which proved to be lead poisoning – Krueger has painted over the old lead poisoning – Krueger has painted over the old lead based paintbased paint

Maze moves out to her Mother’s home while the Maze moves out to her Mother’s home while the apartment is being repaintedapartment is being repainted

Krueger now sends a letter to vacate because of Krueger now sends a letter to vacate because of unpaid rent (money deducted from her rent unpaid rent (money deducted from her rent checks to repaint the apartment)checks to repaint the apartment)

Maze Moves OutMaze Moves Out

Krueger continues to harass MazeKrueger continues to harass Maze She moves out She moves out The HUD administrative hearing is held one year The HUD administrative hearing is held one year

laterlater The administrative hearing board finds Maze The administrative hearing board finds Maze

testimony credible and Krueger’s “inconsistent” testimony credible and Krueger’s “inconsistent” and “untenable.”and “untenable.”

Hearing DecisionHearing Decision

Krueger must pay MazeKrueger must pay Maze $622 for alternative rent$622 for alternative rent $2000 for inconvenience$2000 for inconvenience $10,000 for a civil penalty$10,000 for a civil penalty $20,000 for humiliation & emotional distress$20,000 for humiliation & emotional distress

Krueger appealsKrueger appeals Says that sexual harassment is not forbidden by Says that sexual harassment is not forbidden by

the Fair Housing Actthe Fair Housing Act

The CourtThe Court

Krueger asserts that he tried to evict Maze for Krueger asserts that he tried to evict Maze for legitimate business reasons and not for legitimate business reasons and not for retaliation for his harassmentretaliation for his harassment

That dog don’t hunt, says the courtThat dog don’t hunt, says the court $20,000 is too much, say Krueger$20,000 is too much, say Krueger "The more inherently degrading or humiliating "The more inherently degrading or humiliating

the defendant's action is, the more reasonable it the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation is to infer that a person would suffer humiliation or distress from that action, says the courtor distress from that action, says the court

Pay up, shut upPay up, shut up

Krueger is DejectedKrueger is Dejected

"The more inherentlydegrading or humiliating the

defendant's action is,the more reasonable it is to

infer that a personwould suffer humiliation or

distress from thataction;

Jankowski & Lee v CisnerosJankowski & Lee v CisnerosChicago 1997Chicago 1997

BackgroundBackground

Andrew Rusinov – Tenant/Intervener RespondentAndrew Rusinov – Tenant/Intervener Respondent– 1982 - Diagnosed with multiple sclerosis 1982 - Diagnosed with multiple sclerosis – 1986 - Moved into River Park Apartments and indicated 1986 - Moved into River Park Apartments and indicated

that he had MS that he had MS – 1993 - Inquired about assigned space or lack of 1993 - Inquired about assigned space or lack of

“sufficient” handicapped spaces to accommodate his “sufficient” handicapped spaces to accommodate his disabilitydisability

Multiple SclerosisMultiple Sclerosis

MS causes the body's own immune cells to attack MS causes the body's own immune cells to attack the nerves in the brain and spinal cord, causing the nerves in the brain and spinal cord, causing

repeated episodes of inflammation.repeated episodes of inflammation. Cause unknown – no cure; varies from very mild Cause unknown – no cure; varies from very mild

to fatalto fatal In multiple sclerosis, the immune system attacks In multiple sclerosis, the immune system attacks

the nerves of the brain and spinal cord that the nerves of the brain and spinal cord that

compose the central nervous systemcompose the central nervous system Symptoms are usually progressive ending in Symptoms are usually progressive ending in

complete paralysiscomplete paralysis

More BackgroundMore Background

Jankowski Lee & Associates - PetitionersJankowski Lee & Associates - Petitioners– Managing agent for the owners of River Park Apartments Managing agent for the owners of River Park Apartments

(RPA)(RPA) Two apartment buildingsTwo apartment buildings Prior to 1993Prior to 1993

– One handicapped space per buildingOne handicapped space per building After 1993After 1993

– Two handicapped spaces per buildingTwo handicapped spaces per building– One van-accessible handicapped spaceOne van-accessible handicapped space

Jankowski’s ArgumentJankowski’s Argument

Not aware of the extent to which Rusinov’s Not aware of the extent to which Rusinov’s condition limited his mobilitycondition limited his mobility

Did not violate the FHA because they granted Did not violate the FHA because they granted Rusinov’s request when they increased the Rusinov’s request when they increased the number of handicapped parking spacesnumber of handicapped parking spaces

Court HearingCourt Hearing

Petitioners were in violationPetitioners were in violation– First reason -Did not provide reasonable accommodation First reason -Did not provide reasonable accommodation

for Rusinov and denied his request of an assigned for Rusinov and denied his request of an assigned parking spaceparking space

– Second reason – increased the number but not enough Second reason – increased the number but not enough to accommodate all the tenants with handicap stickersto accommodate all the tenants with handicap stickers

RemedyRemedy

Petitioner’s had a dutyPetitioner’s had a duty– Ask Rusinov for more information regarding his disabilityAsk Rusinov for more information regarding his disability– To provide an adequate number of handicapped parking To provide an adequate number of handicapped parking

spaces for its disabled tenantsspaces for its disabled tenants Awarded RusinovAwarded Rusinov

– $2,500 damages$2,500 damages– $2,500 civil penalties$2,500 civil penalties

Transfer LiabilityTransfer Liability

River Park Development Corporation and John River Park Development Corporation and John Pankratz Pankratz – There was no credible evidence presented that could tie There was no credible evidence presented that could tie

them to any liabilitythem to any liability– The record contradicts stating that owners of real estate The record contradicts stating that owners of real estate

may be held vicariously liable for discriminatory acts by may be held vicariously liable for discriminatory acts by their agents or employeestheir agents or employees

Private ActionPrivate Action

Rhodes v Plamentto Pathway Homes, Rhodes v Plamentto Pathway Homes, 1990 – South Carolina Supreme 1990 – South Carolina Supreme CourtCourt– Rhodes owned property in a subdivision that he Rhodes owned property in a subdivision that he

intended to use for a group home for nine mentally intended to use for a group home for nine mentally retarded individualsretarded individuals

– A restrictive covenant stated: The property hereby A restrictive covenant stated: The property hereby conveyed shall not be used otherwise than for private conveyed shall not be used otherwise than for private residence purposes, nor shall more than one residence, residence purposes, nor shall more than one residence, with the necessary outbuildings be erected on any one with the necessary outbuildings be erected on any one lot, nor shall any apartment house or tenement house lot, nor shall any apartment house or tenement house be erected thereon;be erected thereon;

Court ActionCourt Action

The trial judge held that "the group housing as The trial judge held that "the group housing as described by the Defendant does not meet the described by the Defendant does not meet the definition of a single family house as intended by definition of a single family house as intended by the restrictive covenants . . .“the restrictive covenants . . .“

The court noted: "The defendant is about to The court noted: "The defendant is about to engage in a business or commercial enterprise" engage in a business or commercial enterprise" based upon the fact that the appellant would based upon the fact that the appellant would receive income as a result of housing the receive income as a result of housing the residents, pay employees, pay withholding taxes, residents, pay employees, pay withholding taxes, keep records and prepare profit and loss keep records and prepare profit and loss statements.statements.

On AppealOn Appeal

This Court finds that necessities of operating a group home This Court finds that necessities of operating a group home such as maintaining records, filing accounting reports, such as maintaining records, filing accounting reports, managing, supervising, and providing care for individuals in managing, supervising, and providing care for individuals in exchange for monetary compensation are collateral to the exchange for monetary compensation are collateral to the prime purpose and function of a family housekeeping unit.prime purpose and function of a family housekeeping unit.

These activities do not, in and of themselves, change the These activities do not, in and of themselves, change the character of a residence from private to commercial.character of a residence from private to commercial.

They conclude that the location and operation of a group They conclude that the location and operation of a group residence for mentally retarded adults in the manner and residence for mentally retarded adults in the manner and under the conditions proposed by the appellant would not under the conditions proposed by the appellant would not significantly alter the character of the residential significantly alter the character of the residential community in which it is situated and would not infringe community in which it is situated and would not infringe upon the plain and obvious purpose of the restrictive upon the plain and obvious purpose of the restrictive covenants………. ANDcovenants………. AND

Fair Housing ActFair Housing Act

Furthermore, this Court finds that enforcement of this Furthermore, this Court finds that enforcement of this restrictive covenant would have the effect of depriving the restrictive covenant would have the effect of depriving the mentally impaired of rights guaranteed under the Fair mentally impaired of rights guaranteed under the Fair Housing Amendments Act. For the foregoing reasons, the Housing Amendments Act. For the foregoing reasons, the ruling of the circuit court is reversed. ruling of the circuit court is reversed.

Quick FactsQuick Facts

– There are 4,356,300 children (under 18) with a mental There are 4,356,300 children (under 18) with a mental of physical condition severe enough to restrict their of physical condition severe enough to restrict their activities including normal schooling – 60,124 of them activities including normal schooling – 60,124 of them are in group homes. About 1.29 million of these children are in group homes. About 1.29 million of these children are waiting for inclusion in a group home or foster care.are waiting for inclusion in a group home or foster care.

Hill v Community of Damien of Hill v Community of Damien of Molokai - 1996Molokai - 1996

The contractual covenant:The contractual covenant:

– No lot shall ever be used for other than a single No lot shall ever be used for other than a single family residence purpose. No dwelling house family residence purpose. No dwelling house located thereon shall ever be used for other located thereon shall ever be used for other than single family residence purposes, erection than single family residence purposes, erection or maintenance or use of any building, or the or maintenance or use of any building, or the use of any lot for other purposes, including, but use of any lot for other purposes, including, but not restricted to such examples as stores, not restricted to such examples as stores, shops, flats, duplex houses, apartment houses, shops, flats, duplex houses, apartment houses, rooming houses, tourist courts, schools, rooming houses, tourist courts, schools, churches, hospitals, and filling stations is churches, hospitals, and filling stations is hereby expressly prohibited. hereby expressly prohibited.

Background of CaseBackground of Case

Neighborhoods In Four Hill Villages complained of Neighborhoods In Four Hill Villages complained of increased traffic on a local streetincreased traffic on a local street

Upon investigation it was found that the Upon investigation it was found that the Community of Damien of Molokai rented a Community of Damien of Molokai rented a residence as a group homeresidence as a group home

The home contained four individuals with Auto The home contained four individuals with Auto Immune Deficiency Syndrome – they required Immune Deficiency Syndrome – they required some in-home nursingsome in-home nursing

The community claims that the four individuals The community claims that the four individuals constitute a single familyconstitute a single family

The Island of Molokai HawaiiThe Island of Molokai Hawaii

Father Damien Vuester built two churches on Molokai to Father Damien Vuester built two churches on Molokai to minister to the leper colonies (Hansen’s disease) located on minister to the leper colonies (Hansen’s disease) located on the islandthe island

Hansen’s DiseaseHansen’s Disease

The AIDS of the 19The AIDS of the 19thth Century Century Identified as a bacterium in 1940Identified as a bacterium in 1940 Antibiotic treatment available by 1942Antibiotic treatment available by 1942 About 738,000 cases identified todayAbout 738,000 cases identified today Like AIDS, its victims were social outcasts for the Like AIDS, its victims were social outcasts for the

entire lives and forced to live in coloniesentire lives and forced to live in colonies

The Trial – Trail Court LevelThe Trial – Trail Court Level

The trial court concludes that the residence is being used The trial court concludes that the residence is being used for commercial purposes and thus violates the covenantfor commercial purposes and thus violates the covenant

The appeals court reverses:The appeals court reverses:– The individuals provide support for one anotherThe individuals provide support for one another– They receive spiritual guidanceThey receive spiritual guidance– Some in-home nursing care is provided several times a week Some in-home nursing care is provided several times a week

by a private contractorby a private contractor– This residence is not rendering a service such as a hospice or a This residence is not rendering a service such as a hospice or a

boarding houseboarding house

Rulings of the Appeals CourtRulings of the Appeals Court

The purpose of the group home is to provide the The purpose of the group home is to provide the residents with a traditional family structure and residents with a traditional family structure and atmosphere. Accordingly, we conclude as a atmosphere. Accordingly, we conclude as a matter of law that, given the undisputed facts matter of law that, given the undisputed facts regarding how the Community operates the group regarding how the Community operates the group home and regarding the nature of the family life home and regarding the nature of the family life in the home, the home is used for residential in the home, the home is used for residential purposes in compliance with the restrictive purposes in compliance with the restrictive covenant.covenant.

But Does It Violate the Covenant But Does It Violate the Covenant Because They Are Not A Family?Because They Are Not A Family?

The covenant does not define familyThe covenant does not define family City of Albuquerque defines family as 5 unrelated City of Albuquerque defines family as 5 unrelated

persons or lesspersons or less Also, the government has expressed a strong Also, the government has expressed a strong

public desire in favor if removing barriers public desire in favor if removing barriers preventing individuals with physical and mental preventing individuals with physical and mental disabilities from living in group homes in disabilities from living in group homes in residential locationsresidential locations

The court finds that they are a family within the The court finds that they are a family within the traditional meaning of the termtraditional meaning of the term

Does the Covenant Violate the Does the Covenant Violate the Fair Housing Act?Fair Housing Act?

The trial court concluded that nothing in the The trial court concluded that nothing in the covenants discriminated against a person with a covenants discriminated against a person with a disabilitydisability

The covenant applies equally to people with or The covenant applies equally to people with or without a disabilitywithout a disability

However, the appeals courts notes that this view However, the appeals courts notes that this view of the FFHA is incorrectof the FFHA is incorrect

Correct InterpretationCorrect Interpretation

Section 3604 says that it is unlawful to Section 3604 says that it is unlawful to discriminate on the basis of a disability or refuse discriminate on the basis of a disability or refuse to make a reasonable accommodationto make a reasonable accommodation

Thus 3604 provides for 3 distinct claims of Thus 3604 provides for 3 distinct claims of violationviolation– Discriminatory IntentDiscriminatory Intent– Disparate ImpactDisparate Impact– Reasonable AccommodationReasonable Accommodation

Points of Law on the FFHA - Points of Law on the FFHA - DiscriminationDiscrimination

No one contests that AIDS is a disabilityNo one contests that AIDS is a disability The “Community” need not show if a disabled The “Community” need not show if a disabled

person has been treated differently from othersperson has been treated differently from others The “Community” need not show that there was The “Community” need not show that there was

purposeful, malicious treatment – only that the purposeful, malicious treatment – only that the disability was in some part the basis for the policy disability was in some part the basis for the policy being challengedbeing challenged

However, there is no open proof that the However, there is no open proof that the residents sought to carry out a discriminatory residents sought to carry out a discriminatory enforcement of the covenantenforcement of the covenant

Points – Disparate ImpactPoints – Disparate Impact

To prove disparate impact the “Community” need To prove disparate impact the “Community” need only show that the residents’ conduct actually or only show that the residents’ conduct actually or predictable results in discrimination or has a predictable results in discrimination or has a discriminatory effectdiscriminatory effect

The covenant does has a disparate impact since it The covenant does has a disparate impact since it has the effect of denying congregate living has the effect of denying congregate living opportunities to ALL, including disabled opportunities to ALL, including disabled individuals who could not live on their own individuals who could not live on their own without some form of assistancewithout some form of assistance

Points – Reasonable Points – Reasonable AccommodationAccommodation

The trial court was not upset that the residents The trial court was not upset that the residents failed to make a reasonable accommodation failed to make a reasonable accommodation since the covenant was facially neutralsince the covenant was facially neutral

In this case a reasonable accommodation would In this case a reasonable accommodation would been not to seek enforcement of the covenantbeen not to seek enforcement of the covenant

Therefore, the covenant is barred because it Therefore, the covenant is barred because it offers no reasonable accommodation offers no reasonable accommodation

ConclusionConclusion

The FHA provides disabled individuals the The FHA provides disabled individuals the opportunity to live in traditional community opportunity to live in traditional community settings by removing obstacles that hinder their settings by removing obstacles that hinder their quest for independent living.quest for independent living.

The FHA's application is clear when disabled The FHA's application is clear when disabled individuals are confronted with intentional housing individuals are confronted with intentional housing discrimination motivated by bigotry or discrimination motivated by bigotry or misunderstanding of their handicaps.misunderstanding of their handicaps.

However, the FHA helps the disabled overcome the However, the FHA helps the disabled overcome the subtle effects of unintentional, facially neutral, or subtle effects of unintentional, facially neutral, or even well-meaning restrictions that have the even well-meaning restrictions that have the consequence of denying housing to the consequence of denying housing to the handicapped.handicapped.

A Fact Or TwoA Fact Or Two

People infected with HIV in 2003 = 5 million +People infected with HIV in 2003 = 5 million + People living with HIV in 2003 = 40 millionPeople living with HIV in 2003 = 40 million Total number of AIDS deaths since the beginning of the epidemic Total number of AIDS deaths since the beginning of the epidemic

until the year 2003 = 22 millionuntil the year 2003 = 22 million Current number of AIDS orphans = 15 millionCurrent number of AIDS orphans = 15 million