I do not typically use my own active cases as examples here at the Fair Housing Defense blog, but a similar issue has come up in two of them (one on the east coast and one on the west coast) that I thought merited a post. In both cases, residents have filed complaints asserting management discriminated against them on the basis of disability. Which, while unfortunate, is fine as it is a cost of doing business in our industry.
Now, leasing office staff members (as well as maintenance team members) are busy. There are days when the phone can ring off the hook. Service requests come in and need to be addressed. A pipe can burst. New applicants arrive wanting to view units. Management has to arrange for move ins and move outs (as well as turn units over). Rents need to get posted.
During all this, residents call or come to the leasing office with various requests. Or, more typically, residents send now emails. We housing management professionals need to do a better job in ensuring these emails are appropriately responded to because if they sit and a resident feels as if he or she is being ignored…that is Exhibit A in the complaint and I need to determine how best to defend against allegations that we failed to respond.
What happened in both of these circumstances is that the leasing office spoke with the resident after receiving the email. Which can be fine, but the fact that management spoke to the resident in response to their inquiry does not appear in either the resident’s paper file (old school) or in the electronic notes (new school). In both of my current cases, I am working to prove up that indeed management was responsive to a reasonable accommodation request. I suspect I will be able to get to the right result in both, but it may take some time.
Make no mistake, I am not advising you document every time you see Mr. Smith on the property and say hello. But I am suggesting that a system be put in place to ensure emails are tracked and responded to. For if they are not, you may well need to speak with a lawyer like me to defend against a discrimination complaint.
Just A Thought.
I have received two inquiries over the past couple of weeks for guidance on a confounding issue: medical marijuana. As I write this post, more than 20 states (and the District of Columbia) have some kind of legal medical marijuana or decriminalized marijuana policy on their respective books. However, marijuana use is still unlawful under federal law generally and drug use (including marijuana) is specifically prohibited at affordable properties throughout the nation. What should professional apartment management do when a resident submits a reasonable accommodation request that he or she be permitted to smoke marijuana at home pursuant to a request that has been medically verified and looks to be in compliance with state law?
HUD guidance (from 2011) and recent court decisions (involving both housing and employment law) make clear that management is not required to make a reasonable accommodation for a resident who seeks to use marijuana. The current state of the law is that as marijuana remains unlawful pursuant to the federal Controlled Substances Act, management is not required to accommodate use of what is still an illegal product, even though state law may approve of such use.
Hope that helps. To be sure, this is the type of issue for which you may want to speak with a lawyer like me to review your specific situation or request from a resident.
Just A Thought.
I was talking with a family practice physician a couple of weeks ago. She asked what I did for a living and we started to discuss various issues that involve both our professional lives. Want to know where we intersect? Service/assistance animals. She is the person asked to medically verify more and more requests from individuals seeking a service or companion animal. And while some requests are absolutely legitimate (and she is pleased to sign off on those requests), she told me more and more requests come to her desk that are highly questionable. She has now started to push back because it is clear to her (as a physician) that some of these requests are not from individuals who are disabled.
While this blog covers the Fair Housing Act (FHA), our FHA work parallels (at times) the Americans with Disabilities Act as well as the Air Carrier Access Act. These laws, in part, provide that businesses (such as housing providers, restaurants, and airlines) cannot discriminate against individuals with disabilities and that we are to make reasonable accommodations when needed. Sounds fair enough. While dogs are the most common service or assistance animal, the law recognizes other types of animals can be so classified. Which leads me to an article I saw in the newspaper last week. It appears a passenger on a recent Delta flight had a live turkey (as in Thanksgiving) as an emotional support animal sitting in a seat in the cabin during the flight (and in a wheelchair in the airport). A turkey? You just cannot make this stuff up.
My point here is not to cast doubt on anyone with a recognized disability and who has a legitimate need for a service or companion animal. Indeed, my clients welcome those individuals (and their animals). What I see (and what my physician friend sees) is individuals who are not disabled attempting to use various laws to avoid paying fees or other charges. Which is simply wrong and does a disservice to those with real needs. I will get off my soapbox now.
Just a Thought.
Continuing to promote its fair housing efforts, last month the Department of Justice (DOJ) announced the resolution of another Fair Housing Act (FHA) case, this one filed in U.S. District Court for the Western District of Wisconsin. The matter settled for $100,000 and involved allegations of discrimination against families with children. The defendants agreed to pay $45,000 in damages to the individuals who filed the complaints, $45,000 to other persons who are identified through a subsequent claims process, as well as a $10,000 civil monetary penalty to the United States.
The lawsuit, filed in October 2014, arose following a HUD compliant brought by a single mother who attempted to purchase a unit in a Wisconsin mobile home park. The defendants allegedly refused to approve her application for residency with her two year old child because the home was located in a portion of the park in which the owners had prohibited children. After HUD conducted an investigation, the department concluded the defendants violated the FHA and referred the matter to the DOJ.
After the federal action was filed, the owners approved the residency of the single mother and she was indeed able to purchase the home in question. As a part of the settlement, the defendants were also required to amend their policies to allow families with children to live throughout the park.
While there are, of course, always two sides to every story, the takeaway here for professional apartment management is that unless you meet certain strict criteria regarding housing for older persons (which you should discuss with a lawyer like me), management cannot simply refuse to rent an apartment home to a family because the family includes a child. Even with the best of intentions, this settlement is yet another reminder that it is not for management to decide if a unit is safe for kids or that kids should be prohibited as the unit is in a high traffic area.
Just A Thought.
2015 is in the books. A total of 48 posts here at the Fair Housing Defense blog. I continue to very much appreciate how many of you choose to read this space. With that, my favorite annual post: the Top Ten Fair Housing Defense blog posts from the last year. You can click on each post for a quick link to the article.
#1: Is Following the Seven Protected Classes in the Federal Fair Housing Act Enough to Avoid a Discrimination Complaint? Most Likely Not. (May 26, 2015)
#2: Examples of Apartment Community Rules Which Can Be Perceived to Violate the Fair Housing Act (April 17, 2015)
#3: Another Fair Housing Familial Status Discrimination Case Involving Advertising Settles — This Time for $17,000 (March 13, 2015)
#4: Early Termination of a Lease as a Reasonable Accommodation? (May 7, 2015)
#5: HUD Announces New Fair Housing Regulations (July 10, 2015)
#6: Here is a Summary of the Fair Housing Issue Argued Before the U.S. Supreme Court (March 19, 2015)
#7: DOJ Settles Another Familial Status Discrimination Case: This Time for More Than $100,000 (March 24, 2015)
#8: HUD Settles Fair Housing Disability Discrimination Case for $167,000 (July 27, 2015)
#9: A 32 Pound Boa Constrictor as a Companion Animal? A Review of How to Respond. (February 26, 2015)
#10: Is That Service Animal Request Legitimate? Or is That Resident Attempting to Avoid Pet Rent and Pet Fees? (January 27, 2015)
I will do my best to continue to write about the issues that concern professional apartment management most. While there certainly are Fair Housing Act (FHA) issues which are absolutely clear, others are more nuanced and which might require a discussion with a lawyer like me.
And at the end of each post, I will try to leave you with: Just A Thought.
When dealing with a reasonable accommodation request for a service or companion animal, it is axiomatic that housing providers may ask individuals with disabilities that are not readily apparent to submit reliable documentation of the disability and the disability-related nexus for an assistance animal. But just who is appropriate to submit the medical verification?
Case law on the issue of the credentials of a medical professional remains a bit unclear. Individuals who are licensed by a public regulatory authority to provide medical care, therapy, or counseling to persons with disabilities certainly qualify. This includes, of course, doctors, physician assistants, nurses, psychiatrists, psychologists, and social workers. Guidance from HUD and DOJ intimates that a peer support group (a non-medical service agency) may also provide verification of a disability. But where does the acceptable health care verification line end? Is there some bright line test out there?
Not really. That being said, management should absolutely push back against medical verifications which were obviously simply purchased over the internet or look like they are from someone who charges by the minute on the phone or may have been obtained during an internet chat. I see these regularly. In an effort to avoid paying a pet fee, some residents go on line and purchase a Service Animal Registration for Rover for the low, low price of $69.99. Alternatively, I had a case in which a resident participated in an on-line chat with someone 2,000 miles away (at the rate of $2 a minute) to have Fluffy declared a companion animal. In both of these circumstances, I recommended we reject these medical verifications and require that the resident work with someone with credentials to appropriately verify a reasonable accommodation request. Is it theoretically possible that an internet based disability medical verification is legitimate? Sure, but most of what I have seen is just someone paying for a piece of paper. If you have a question or concern about a medical verification, I would suggest you send it to a lawyer like me.
Happy New Year to all. We will reconvene in early 2016. With apologies to David Letterman, my next post will be the Top Ten most read Fair Housing Defense blog posts from 2015.
Just A Thought.
I have touched on this topic before, but believe it is worth a refresher today. Every apartment community has rules. Many rules are designed to address legitimate safety concerns. But, we need to ensure our rules do not run counter to the Fair Housing Act’s (FHA) prohibition on familial status discrimination. HUD has charged any number of cases (resulting in settlements of over $100,000) in which rules (even those intended for health and safety) have been found too restrictive and, as such, violate the FHA. Easy calls are rules which, for example, “prohibit all children from playing in the parking lot.” A court will read that as discrimination against children. While bad fact patterns can make bad law, other charged cases include rules prohibiting kids riding bicycles, kids going to the clubhouse, or curfews on teenagers. Also difficult are rules limiting access to children and teenagers in apartment swimming pools – management writes them with child safety in mind. But simply inserting that “no one under 18 is permitted at the pool without a parent or guardian” can get you into trouble.
Again, most of the rules are written with good intent. But, they can have the unintended impact. So, what to do? Review your community rules with counsel with an eye toward ensuring they pass scrutiny. As noted above, age related rules are problematic. I suggest working with your lawyer to articulate what is the real purpose behind the rule. And talk to your lawyer to determine if there is a way to write that rule in such a manner that it does not appear to discriminate against children. To use the example from above, instead of a community rule which “prohibits children from playing in the parking lot” perhaps amend the policy to read that “nobody is permitted to play or loiter in the parking lot.” That policy will have the same impact, but reduces the chance your property will get hit with a familial status discrimination complaint. Make sense?
Just A Thought.
I had two related questions about service/companion animals this week that I wanted to address. As I have written many times before, professional apartment management does not charge a pet fee or pet rent for legitimate service or companion animals. Similarly, we will waive a “no pets” policy for a service animal and recognize there are no breed restrictions.
That being said, the owner of a service animal remains responsible for the conduct and behavior of the animal (in most cases dogs, but not always). Which includes cleaning up after the dog. The law also requires the animal to be under the control of the owner. This can typically occur using a harness, leash, or other tether. However, in cases where either the owner is unable to hold a leash because of a disability or use of the leash would interfere with the service animal’s safe and effective performance of work or tasks, the animal still must be under the handler’s control by some other means, such as voice control. “Under control” also means that a service animal should not be allowed to bark repeatedly in a hallway or other quiet place. To be sure, if a dog barks just once, or barks because someone has provoked it, this would not necessarily mean that the dog is out of control.
The bottom line here is that the leasing office should work with residents who have service/companion animals as a part of the interactive process. Remember, while management has an absolute obligation to meet the needs of our disabled residents with service/companion animals, we also cannot lose sight that our other residents and employees have rights as well. And management cannot permit dogs (whether pets or service animals) that are out of control and which cause fear and/or distress to other residents and management team members.
Just A Thought.
The calendar has rolled to December. Holiday time. Which is great for kids and families. Santa Claus. Decorations. For professional apartment management, however, the question of what to do (or not do) with respect to holiday displays and decorations comes up each year at this time. Leasing office staff members are required to balance the religious and holiday requests of all, while showing a preference to none. What some might see as benign can be perceived as offensive to others. HUD’s guidance on this point notes that while our Fair Housing Act (“FHA”) does not prohibit religious expression, all residents must be treated equally and without regard to their particular religion.
The FHA makes clear that management cannot publish any notice, statement, or advertisement with indicates a preference, limitation, or any type of discrimination based on religion. Furthermore, the applicable regulations prohibit management from engaging in “inherently religious activities” when participating in any activities funded by HUD. “Inherently religious activities” include worship, religious instruction, or proselytism. To be sure, this prohibition is tempered by the qualification that these types of “inherently religious activities” may be offered separately “in time or location” from the programs, activities, or services supported by HUD funds and that participation in these programs must be voluntary. As such, management is tasked to protect the rights of those residents who wish to participate in certain activities as well as the rights of those residents who are of a different faith (or those who have no religion). If you have a community room, for example, any resident can sign up and use it. While management should not get in the business of promoting a specific religious practice or activity, the question about decorations remain.
Well, the easy choice is to simply ban all holiday displays. But many residents are correctly unhappy because it seems like overkill. Yet others may complain that their specific religion is omitted or another display is perceived to receive preferential treatment. What should a community do? I have recommended that communities have a designated area in which holiday items from various faiths are displayed. Invite residents to participate. Additionally, there is guidance that notes references to Santa, Christmas trees and the North Pole are far enough away from religion so as to lose any prohibited inference. Another option is to remind residents that they can absolutely decorate the interior of their apartments, their doors, (and if appropriate at your specific community) alcoves or areas next to their doors with more overtly religious displays.
As management, we are looking for a policy which appropriately balances the beliefs of all while ensuring we are not perceived to favor one religion over another. And whatever decision you make, just know that someone may not be happy about it. Which may require you to speak with a lawyer like me.
Just A Thought.
Continuing a trend I have been reporting on this month, the Department of Justice (DOJ) has filed yet another complaint against the owner and manager of a 28 unit apartment community alleging familial status discrimination under the federal Fair Housing Act (FHA). This complaint, filed in Colorado, asserts that the defendants had a policy in place to generally prohibit families with children from living in the front building at the property and further that management restricted families with children to a rear building instead.
The lawsuit started with a fair housing complaint filed with HUD by a local fair housing tester group. The testers sent individuals posing as applicants to the leasing office to determine if management was complying with the FHA. It is alleged that the tests revealed that the community manager told applicants that families with children were placed in the rear building and further that families with children were not offered units in the front building. HUD issued a formal charge of discrimination and an election was made to take the case to federal court.
While I absolutely want to hear the other side before forming any opinion as to the merits, under the FHA, apartment management cannot arbitrarily limit where children live in the apartment complexes. Provided the applicant family meets a non-discriminatory resident selection criteria (which can include a credit and criminal background screen), the general rule is that the applicant should decide which specific available unit fits their needs. Management cannot direct families to a different building or even a separate floor. I have seen other instances in which management for what appears to be a benign reason – typically to have a quiet floor or building – runs into trouble (such as a discrimination complaint) because their policy unlawfully discriminates against families with children. If you have policies or are writing policies concerning occupancy (locations, limits, or standards) you might want to run them by a lawyer like me in an effort to reduce the potential that you might end up as a defendant or respondent in a fair housing case.
Just A Thought.