Loyal Fair Housing Defense blog readers (thank you very much) know that I defend (and report on) what seems like a never ending stream of emotional support animal (ESA) housing discrimination cases these days. The typical run of the mill case comes with a medical verification that looks like it was purchased over the internet with a credit card (as opposed to from a legitimate health care or medical professional who has an actual relationship with a disabled patient). My Firm’s accounting department likes these cases; although my clients are certainly irritated by the continuing cost.

Among my goals for the past couple of years has been to compile a thick stack of dismissals on the merits from cases involving internet purchased ESA letters to use as precedent as more and more get filed. To date, I have a few. And I cite to them in my responses. But, I am seeing a trend. In a number of these cases (particularly those filed by certain fair housing tester groups, you know who you are), once I push back and assert that the medical verification is, at best, questionable and subject to further scrutiny, the complainant stops cooperating with the investigator. While at the end of the day I get my no probable cause dismissal (which is always good), it can be for “failure to cooperate” with the investigator as opposed to on the merits. Which is less useful to our industry.

I continue to hope the U.S. Department of Housing & Urban Development (HUD) and/or the U.S. Department of Justice (DOJ) issues supplemental guidance that helps professional apartment management defend against these internet letters and the cases derived from them. From time to time I hear unofficial rumblings that something is being discussed, but I have nothing with respect to if or when new guidance will be published. In the interim, I still have a number of what I suspect are fraudulent ESA cases and I will continue to wait for more and more dismissals on the merits. Which will help all of us who work to comply with the letter and spirit of the fair housing laws.

Just A Thought.

I received two related questions concerning assistance animals that I thought easier to answer in a blog post. In essence, readers asked if there can be any restrictions on where an assistance animal is permitted to go in an apartment community. As is so often in the law, the answer depends on if the animal is designated as a “service animal” or as an “emotional support animal.”

A “service animal” (think of a guide dog that is specifically trained to assist someone with a vision impairment) is permitted in all areas of an apartment home, community common areas, as well as places of public accommodation within the property (such as the leasing office).

An “emotional support animal” (think of an assistance animal that is not specifically trained to assist, for example, someone suffering from PTSD) is permitted in all areas of an apartment home and in the community common areas.

Now, I just had a case in which a fair housing tester asserted management discriminated against him because we would not permit an assistance animal in our community pool. The confusion (which I was able to clear up) was that the plaintiff claimed we prohibited assistance animals anywhere in our pool area. In fact, management welcomes assistance animals in our pool area (think of the pool deck) – but for obvious legitimate health and safety reasons, we do not permit any animals actually in the water.  Once I proved that to the satisfaction of the state agency, the complaint was dismissed.

Hope that helps.

Just A Thought.

The partial federal government shutdown is in its 30th day as I type this. It is going on longer than most people (including me) thought. No resolution seems to be in sight. The U.S. Department of Housing & Urban Development (HUD) is one of the federal entities largely closed until the administration and Congress solve the current funding impasse.

So, what happens to our housing discrimination cases pending with HUD during the shutdown? The short answer is your case is on hold. I got emails from a handful of investigators when the shutdown went into effect noting they have been instructed not to report to the office and they are not permitted to work on their pending matters. Indeed, two of my cases had interviews scheduled that were postponed. No way to know how quickly they will get rescheduled once the government reopens.

Another three cases have responses due. My best advice is to prepare your response and send it in so there can be no allegation that we missed a deadline, although I typically like to introduce myself to the investigator and briefly discuss the issues in an effort to determine just what HUD really needs to complete its inquiry. It is, however, unclear what happens to the 100 day clock during which HUD is tasked to complete its investigation. Now, as the 100 day limit is routinely missed, I suspect pending cases will receive what I call a “100 Day Letter” noting the case needs more time and usually providing a new expected completion date.

For cases pending in federal court, the various districts are doing their best to stay open (using court fees and juggling funds previously appropriated). Best guess is there is enough money to last until around February 9, 2019. We are now seeing individual districts deciding how to prioritize cases and staff. Some courts have issued stays (legalese for a pause) in civil cases in which the United States is a party. I suspect if the shutdown lasts into the second week of February, civil case processing will stop or severely slow down.

And no — the shutdown does not mean the Fair Housing Act has lapsed.

Now, remember – the shutdown impacts HUD and the Department of Justice. If your case is pending before a state, county, or city civil rights agency/commission – it is being processed as usual.

Just A Thought.

A dutiful Fair Housing Defense reader (thanks for taking the time to visit) pinged me with a question concerning the annual Top Ten list of blog posts.   Apparently after clicking on at least one entry, my reader noticed that the post was from a few years back.  Fair point.  The list I circulated in the last post was the Top Ten Fair Housing Defense blog posts of all time.  Apparently my Firm tracks everything.  Printed below are the Top Ten Fair Housing Defense blog posts (with links) from 2018.  Because I know that distinction makes a difference to many of you:

  1. Medical Marijuana, Reasonable Accommodation Requests, and the Fair Housing Act – February 6
  2. Virginia Offers Guidance For Confirming That Medical Verifications for Emotional Support Animals Are Legitimate – February 27
  3. These Types of Housing Are Covered Under the Fair Housing Act. And These Types of Housing Are Not. – April 6
  4. Federal Court Concludes Social Security Disability Should Count As Income Under the Fair Housing Act – October 30
  5. Familial Status Discrimination Case (Concerning a Family With 12 People) Settles in California – February 22
  6. Assistance Animals and Guests? Here Are Some General Guidelines. – March 29
  7. The Top Ten Fair Housing Defense Blog Posts From 2017 – January 2
  8. California Apartment Owner Pays $100,000 to Settle Emotional Support Animal Fair Housing Case – January 22
  9. Court Issues Guidance Concerning Evaluating When an Animal Might Be a “Direct Threat” – March 16
  10. This is the First Step Necessary to Qualify for a Reasonable Accommodation or Reasonable Modification – April 13

Upon review, I am pleased that the list includes a handful of front burner fair housing issues (assistance animals, medical marijuana, reasonable accommodations/modifications, familial status) that professional apartment management and our leasing offices staff members deal with on a daily basis.

Just A Thought.

 

My favorite blog entry of the year. With annual apologies to David Letterman, here are the Top Ten Fair Housing Defense Blog posts from 2018 (ranked in order of how many people viewed each entry):

1. Exemptions to the Fair Housing Act? Not Many — But Here Are Some.

2. Who Pays for Reasonable Modification or Reasonable Accommodation Requests?
3. The “Mrs. Murphy” Exemption to the Fair Housing Act|
4. The FHA’s “Mrs. Murphy” Exemption — A 50 State Guide
5. The Statute of Limitations and the Fair Housing Act
6. Fair Housing Defense | Pennsylvania Fair Housing Lawyer
7. Should the Fair Housing/Equal Housing Opportunity Logo Be Used in Advertising? Yes.
8. Are Rental Roommates Covered Under the FHA?
9. Just What is “Steering” in Housing?

10. Occupancy Standards — Why They Matter

As we go through 2019, I will try to focus on these topics (as well as my running guide on the latest in assistance animals and the Fair Housing Act).

Just A Thought.

 

Last week, the U.S. Department of Housing & Urban Development (HUD) issued a press release to announce it resolved a disability discrimination case in November 2018 filed against a New Jersey age 55 and over condominium association involving claims that the condo association violated the Fair Housing Act (FHA) by refusing to sell a couple a home because the couple intended to have their disabled adult daughter live with them.

As a part of the consent order concluding the case, the condo association agreed to play a $9,000 civil monetary penalty as well as adopt various anti-discrimination policies and take at least two hours of fair housing training.

While the HUD press release and consent order concerning this case do not provide many facts, it is likely the condo association felt stuck between two competing interests: its formation documents requiring that residents in the condominium be age 55 and over and the FHA, which requires reasonable accommodations when appropriate to individuals who are disabled. The lesson here is to speak with a lawyer like me when confronted with what are believed to be conflicting fair housing related laws so we can make the best decision and reduce the risk of a complaint such as was filed here.

Happy New Year to all (including my wife…let’s see if she actually reads this post). Your humble Fair Housing Defense blog editor will be back next week with my favorite annual post: The Top Ten Fair Housing Defense Blog posts of the preceding year.

Just A Thought.

You can’t make this up.  In an effort to help reduce holiday travel stress, Popeyes (the chicken restaurant chain, not the cartoon character) launched an “Emotional Support Chicken” to provide a quick laugh to travelers (at least to those at the airport in Philadelphia).  The next box is designed to bring fried chicken on holiday flights.

All kidding aside, this is the problem now faced by those with legitimate disabilities (including our veterans) and who need assistance animals.  Because there is so much abuse on the internet and elsewhere, the Emotional Support Chicken is out there for a laugh.

While 2018 closes with a little humor, professional apartment leasing office staff members will still engage with our residents in 2019 to simply confirm their emotional support animal requests are legitimate and were not purchased over the internet.  Or from Popeyes.

Happy Holidays to all.

Just A Thought.

 

 

Last week we wrote generally about the impact of fair housing laws on holiday decorations and displays and the challenging balancing act that management must undertake when considering what, if any, holiday displays they will permit in their communities. A recent judgment from the U.S. District Court for the District of Idaho demonstrates just what can happen if management (or a homeowners’ association) fails to address issues that members of the community might have with their neighborhood’s aspiring heir to the mantle of Clark Griswold. As the Homeowners Association learned, nothing quite puts a damper on the holidays like having a $75,000 judgment entered against you over some Christmas lights.

The matter had its genesis in late 2014, when the plaintiffs held a religious based program in a home that they were renting at the time, ostensibly for the purpose of spreading a religious message and raising money for charity. Shortly thereafter and allegedly with the specific intent of purchasing a home that would be ideal for this Christmas program, the family made an offer on a home in the community governed by the Association. The family promptly contacted the Association and informed the Association’s President of their intent to host an annual event for five days each holiday season. The event, of course, would be centered on their home, which would be festooned with approximately 200,000 lights, and would also feature a live nativity, camel and all, live music, hot chocolate, photos with Santa, and portable restrooms.

Unsurprisingly, the Association balked and did not take our fair housing laws, which forbid discrimination on the basis of religion, into account. Now, wait, you might say, nowhere in any Christian religious text is there any mention of Christmas lights, live nativity scenes, or having your picture taken with a man dressed as a modern amalgamation of St. Nicholas, Father Christmas, and the Norse god Odin first dreamt up and popularized in the early 1900s. How on earth could a homeowners’ association refusing to allow such a garish display constitute religious discrimination under fair housing laws? The answer is simple: the Association said exactly the wrong things in its letter refusing the family’s request.

Initially, the Association’s refusal cited three sections of its governing documents that prohibited the proposed display and program: (1) the property could only be used for single family residential purposes; (2) the Association’s documents prohibited nuisances, including speakers, bells, whistles, and other sound emitting devices; and (3) the Association’s documents require lighting to be restrained in design and to avoid excessive brightness. Whether the Association was right or wrong, it was correct to rely on its governing documents, which were presumably drafted and implemented in a religiously neutral manner. The Association next raised more practical concerns, all of which are valid, including concerns that the community’s elderly population would be put at risk if the festival’s traffic and parking impeded first responders from accessing the neighborhood during an emergency.

Had the Association stopped there, they would have put themselves in a good position in the event that the homeowner (a lawyer who ultimately ended up representing himself pro se), had ever sued. As you might guess, though, the Association did not stop there, and went on to write:

And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up.

By specifically bringing religion into it, the Association handed the family a fair housing case on a silver platter. The judge, in fact, specifically refused to grant the Association’s motion for summary judgment because of that portion of the letter. At the end of the day, after nearly two years of litigation, a federal jury found in favor of the plaintiffs, awarding them $60,000 in compensatory damages and $15,000 in punitive damages. And it could have been worse. Had the plaintiffs not proceeded pro se, the Association could easily have been forced to pay double that amount in attorneys’ fees.

Just A Thought.

Article by Christian Moffitt.

Every year in December I get questions about holiday decorations in apartment communities. How do we respect the Christmas celebrations of some, Hanukkah beliefs of others, as well as festive traditions of various other cultures? Can we put up decorations involving Santa Claus? What about Christmas trees? Rudolph? Menorahs? And what to do if some residents celebrate nothing during this time of year?

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.

To that end, the FHA makes clear that management cannot publish any notice, statement, or advertisement which 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.

So, what to do? 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 are management’s options? 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 confirm 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.

Acting on a complaint initially filed back in 2016, just yesterday the U.S. Department of Housing and Urban Development (HUD) formally charged the owners, architect, and builder of an apartment building (with 164 units on six floors) in Denver, Colorado with housing discrimination for failing to make the property accessible to residents with disabilities. In addition to the seven protected classes in the federal Fair Housing Act (FHA), covered multifamily housing must be designed and constructed to ensure it is accessible and usable for people with disabilities.

The case started after a local Denver fair housing group conducted tests on the property and filed a disability discrimination complaint. Finding merit to the complaint, HUD’s charge asserts that the owners and builders did not design and construct the complex in accordance with the FHA as specific areas of the building remain inaccessible to people with mobility impairments. While all of the individual units are reachable by elevator, the complaint notes issues with accessible routes to the swimming pool and hot tub located in a courtyard. Specifically, the charge alleges the thresholds for the doorways are too high (by half an inch) and the door-opening force required to enter exceeds the maximum allowable force in the guidelines. Furthermore, HUD claims six of the seven parking spots designated for accessible parking are out of compliance with the applicable standards.

Now, there are always two sides to every story, and just because a plaintiff asserts a claim does not mean it is true. One takeaway here, of course, is to ensure multifamily properties are designed and built in accordance with the applicable standards. Indeed, the law contains seven safe harbors that must be complied with.  Or property owners will need to speak with a lawyer like me.

Another takeaway is that property owners must be understand that fair housing testers (many of who are funded at least in part by HUD) are out there looking for FHA violations.  Even technical ones like those included in this discrimination charge.

Just A Thought.