KARL HUNT – SUPERHERO OF FAIR HOUSING

By: Matthew Dietz

Litigation update of A Mother of an Adult with Down Syndrome’s Worst Nightmare

In November of 2014, I described a horrible incident where a property management company attempted to evict Karl Hunt, and his mother Dyan, from their home of six years. On February 18, 2016, the Eleventh Circuit Court of Appeals issued an opinion finding that Karl and Dyan are protected from discrimination due to assumptions or stereotypes about Karl’s disability and that he should not be treated any differently from any other person because of his disability.

In 2012, Karl, a 23 year old man who lives with Down Syndrome, spent his day at his home in Reflections at West Palm Beach where he listened to Disney sing-a-long and Pokémon

Karl Hunt and Pokemon

songs on his headphones while his mother worked. During the day, the property manager would constantly yell at Karl and demand that he leave the pool area or the community room, and unbeknownst to his mother, Karl was used to perform tasks around the development, such as cleaning bathrooms, taking out the trash, and other jobs in the community, without being paid.

On August that year, Karl went to the property manager’s office and described what was occurring in his favorite Japanese anime cartoon television series called Fullmetal Alchemist. While explaining the cartoon in the office, he drew on a map of the property and the property manager thought he said that he was going to sacrifice her, and then trap all of the residents in their apartments and set the property on fire.

Karl Hunt and Pokemon

The property manager spoke to Karl’s mother, Dyan, and said that this behavior was unacceptable and they would need to move. Dyan pleaded with her that this was a misunderstanding, and Karl could not explain the cartoon adequately because of his disability, she even offered to send Karl to a facility during the day when she worked. However, the property manager set into motion the non-renewal of her lease and even called the police so that if Karl went into the common areas of the development, he would be arrested. The police man scared Karl and Karl thought he was going to go to jail if he went outside of his home. Dyan sold and packed up her belongings and was prepared to leave, when Disability Independence Group told her that this was a violation of her son’s rights under the Fair Housing Act.

Disability Independence Group filed a complaint on behalf of Dyan and Karl Hunt under the Fair Housing Act, which prohibits discrimination against persons with disabilities. We alleged as follows:

1. Karl could not be evicted because of his disability, unless the development could prove that he was a real and substantial danger to others.
2. Karl could not be denied the privileges and benefits of being a tenant because of his disability, which included being chased away or barred from the common areas, or being required to do work around the property without consent.
3. In a last ditch effort to remain on the property, Dyan asked for a reasonable accommodation for Karl to go in a day center while she worked, and then she could supervise him at night. This request was not considered by the management.

In November of 2014, the District Court Judge dismissed the action finding that Dyan and Karl did not state a claim under the Fair Housing Act because Karl and his mother were required to ask for an accommodation prior to the events in the property manager’s office, and the request before the non-renewal was not sufficient. Further, the court found that the actions against Karl in being barred from areas of the property or being required to work were not sufficient to state a claim. Disability Independence Group appealed on Karl and Dyan’s behalf to the Eleventh Circuit Court of Appeals.

On February 18, 2016, the Court of Appeals ruled overwhelmingly in Karl’s favor and reversed the district court’s decision on all grounds. They remanded it back to the lower court and provided the district court, and all other courts in the Eleventh Circuit, detailed instructions in the law regarding disability discrimination claims in housing. The entire decision is here.

Appellate Team – (L-R) Sam Rony, Rachel Goldstein, Karl Hunt, Dyan Hunt, Matthew Dietz, and Jennifer Hunt

THE FIRST VIOLATION of the Fair Housing Act were the actions that were taken by the property management to deny Karl and Dyan a lease renewal of their apartment.

The Fair Housing Act prohibits the “denying or making a dwelling unavailable for rental” because of a disability. To state a claim, the 11th Cir. found that “a complaint must allege that the adverse action was taken because of a disability and state the facts on which the plaintiff relies to support that claim.” The 11th Cir. found the following adverse action:

Despite the fact that the Hunts intended to renew the lease and were qualified to do so, Aimco allegedly refused to allow the Hunts to continue renting the apartment. The Hunts were given notice to vacate the apartment on a date certain.

Then the 11th Cir. found that the action was taken because of a disability, as follows:

Moreover, the Hunts pled that Aimco took adverse action against them because of Karl’s disability. The Hunts alleged that “Aimco treated Karl Hunt differently solely because of his disability and did not want him residing at Reflections.” Id. ¶ 53. Even though Dyan described to Ms. Jackson how Karl’s disability could cause misunderstandings such as the perceived threat, Ms. Jackson disregarded her explanations and continued the eviction process.

Further, the Court also found that it did not matter whether the property management was successful in its attempts to evict or to deny a lease to Karl and Dyan and found that the failure for the property management to be successful in their discriminatory acts does not “wipe out the need for consideration of damages.”

In addition, whether or not Karl was a threat to anyone’s safety is a defense of the property management that they are required to plead and prove with individualized assessment of Karl’s behavior that is based on reliable objective evidence and must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the direct threat. The determination cannot be made on stereotypes or assumptions of a person’s disability.

THE SECOND VIOLATION of the Fair Housing Act were the actions that were taken by the property management with the discrimination in the terms and conditions of housing to which Karl was subject because of his disability.

Because of Karl’s disability, he was bullied by the property management. This included the management yelling at him and chasing him away from common areas, making him do maintenance work around the complex, and barring him from the community rooms and the office. Further, the 11th Cir. found that it “was a distinction without a difference” that the police were used to threaten Karl not to enter private areas. As stated by the Court, “A private entity may not use the police as a front for discrimination.”

THE THIRD VIOLATION of the Fair Housing Act were the actions that were taken by the property management in disregarding Dyan Hunt’s request for a reasonable accommodation to place Karl in a day care center while she was at work so he would be not be at the complex in the day and she would supervise him at night.

The request for accommodation does not need to be in any specific “magic” words, but only needs to provide sufficient information for the property manager to “know of both the disability and desire for an accommodation” and the “circumstances must at least be sufficient to cause a reasonable [housing provider] to make appropriate inquiries about the possible need for an accommodation.”

In Karl’s case, the 11th Cir. found the following facts sufficient:

Dyan told the property manager that she would look for a facility that would take care of Karl during the day while she was away at work to prevent any more incidents. It is clear from the context that Dyan communicated that she was attempting to make these arrangements for the express purpose of avoiding future conflict as a result of Karl’s disability. We conclude that these factual allegations were sufficient to plead that Dyan sought an accommodation in the form of an exception to Aimco’s apparent policy or practice of not renewing the leases of tenants who make threats.

Karl Hunt and Pokemon

What’s next?

This opinion by the 11th Circuit Court of Appeals does not mean that Karl wins in case, but instead, it means that he has the opportunity to prove his case before a jury and have a jury decide if what the property management did was discrimination based upon his disability. But what makes Karl (and Dyan) a superhero is that that they stood up for their rights and held firm despite the hardship in doing so. They paved the way for many other persons with intellectual or developmental disabilities to live in their homes, and not to get bullied or evicted because of their disabilities.

The Cuddle Effect

By: Matthew Dietz

Cuddles, the Persian cat, was worth a million dollars to Izak Teller and his wife, Barbara. Because of Cuddles, they were rejected from the ability to live in a fully renovated unit overlooking the Intercostal in Palm Beach, and bought a less desirable unit that they were required to renovate. The matter settled, and the Tellers received a settlement of $275,000 to vindicate their rights under the Fair Housing Act. This equates to an amount that is worth twice of Cuddles’ weight in gold.

Cuddles was Barbara’s emotional support animal. For over 20 years, Barbara suffered from spinal injury which caused her extreme pain and limited her mobility. This caused her significant pain, depression and anxiety. She found that having Cuddles reduced her anxiety and depression, and lessened her reliance on psychotropic medication. In 2011, Izak Teller was diagnosed with stage three colon cancer, and while recovery from stage three cancer is difficult, with the support of Cuddles, Izak pulled through and was cured.

In 2011, Izak and Barbara wanted to live at the Cove, a luxury apartment in Palm Beach. The apartment was fully renovated and move-in ready, with a cabana. It was the deal of a lifetime and too good to pass up, but it had a no pets rule. Izak and Barbara contracted for the apartment and advised the condominium association, as they had done in previous apartments, that Cuddles was Barbara’s support animal, and permitted under the Fair Housing Act. Cuddles did not leave the apartment, and as demonstrated above, slept for much of the day. He was a house cat.

However, an owner, an attorney from New York, who lived on the same floor said no. She did not want Cuddles, and since she was allergic to cats, if Cuddles was allowed to move in, then she was going to sue. The Cove Condominium Association was in a difficult position – between a cat and a New York lawyer. The condominium sided with their resident under threat of a lawsuit and said no to the Tellers. The Tellers lost the deal and bought a condominium without a cabana in Palm Beach, and spent a considerable sum renovating the condominium. Izak Teller did much of the renovation himself, despite being treated for stage four cancer, but they still were with Cuddles.

While the Cove was in an unenviable position – between a house cat and a New York lawyer— the Fair Housing Act requires a housing provider to make reasonable accommodations in no pet rules when it is necessary to afford the person an equal opportunity to use and enjoy a dwelling. The only defense a housing provider can have is if the accommodation would be a fundamental alteration of the housing provider’s programs or services or if it would be an undue financial or administrative burden. There is no determination of whether the housing provider intentionally discriminated based on the person’s disability.

The neighbor who threatened to sue admitted to exposing herself to cats, cat dander and cat hair when she visits a friend’s apartment and when a friend who owns a cat visits her in her home. The neighbor takes an antihistamine which alleviates her symptoms and she has not had adverse side effects. As such, Cuddles the Cat would not have an undue burden to her or any other resident of the Cove Association. However, even if the neighbor was highly allergic to cats, the Tellers explained that Cuddles is a house cat, and that because each apartment had an individual air condition unit that is separate from the building air conditioning, the cat hair or dander would not affect any other tenant. Further, the cat will be brought to the unit in a closed carry case and will stay in the unit with Mrs. Teller; and any allergist would not be able to testify with reasonable medical certainty that the board member’s allergies could be affected under these circumstances.

On or about February 28, 2012, Plaintiffs filed a complaint with the Palm Beach County Office of Equal Opportunity (“OEO”) and the U.S. Department of Housing and Urban Development (“HUD”) related to this matter. On October 26, 2013, the Palm Beach County Office of Equal Opportunity and HUD issued a finding of Cause against The Cove. Subsequently, the Disability Independence Group, and the law offices of Herb M. Milgrim. P.A. brought an action on behalf of the Tellers in Palm Beach Circuit and obtained a $275,000 settlement through mediation.

In November, Cuddles passed away after her own illness, and he will be fondly remembered by all who knew her.

Litigation: When the denial of a reasonable accommodation leads to tragedy

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.

Litigation: When the denial of a reasonable accommodation leads to tragedy

By: Matthew Dietz

Most times when a person requests a reasonable accommodation or a modification because of a disability, the accommodation or modification assists a person to live independently or lessens the effect of a disability. This includes a closer parking space, grab bars in the bathroom, or an assistance animal. However, there are many times when a need for an accommodation is a matter of life and death. In a recent case filed by DIG and Belvin Perry of Morgan & Morgan, the denial of a reasonable accommodation led to Samuel Rosario’s death at his apartment at the Logan Heights Apartments in Sanford, Florida.

Sammy Rosario had four adult children, two boys and two girls, and many grandchildren, but he valued his stubborn independence and insisted on living on his own. Sammy lived at Redding Gardens, a Public Housing Property where only elderly and disabled individuals were admitted. He was admitted to this specific property because he lived with numerous medical conditions, including memory loss, seizure disorder, and mobility impairments.

In October 2011, Orlando Housing Authority (OHA) assisted in the relocation of residents that lived at Redding Gardens, and Sammy was moved by OHA to Logan Heights Apartments, a privately owned, tax credit, multi-family development. Sammy was relocated to a one bedroom apartment on the third story, with access by three flights of stairs. However, on the same day of the move, the OHA Relocation Specialist telephoned Sammy’s daughter, Stephanie Fernandez, to tell her that her father could barely make it to his second floor apartment at Redding Gardens and OHA refused to allow Sammy into the moving truck to the new apartment.

Stephanie frantically searched for her dad and could not find him at either development, so the entire family conducted a dragnet for Sammy Rosario. Sammy Rosario was found lost, delirious and bleeding close to a major highway. An ambulance was called and he was taken to the hospital. Once released, Sammy could not see. He was legally blind. Stephanie called the relocation specialist, informed them of her dad’s condition, his inability to live independently or on the third floor, and requested assistance for her father to live in a first floor apartment and to be allowed to live with an aide. No action was taken on their request.

For the next two years, Sammy, and his daughters Stephanie and Stacie, provided, asked, and pleaded for a first floor apartment and the ability to have a live in aide for Sammy, so he could live as independently as possible. They provided doctors notes, but were given various excuses by OHA, including the lack of adequate funding for relocation.

In the fall of 2012, the Social Security Administration denied Sammy Rosario’s application for Social Security Disability. Because Mr. Rosario’s disability was so obvious, Mr. Rosario appealed the decision. However, notwithstanding the determination of Mr. Rosario’s doctors of his disability, OHA decided that Mr. Rosario was now not considered “disabled”. This was due to a finding of the Social Security Administration that Mr. Rosario was not classified as disabled and Mr. Rosario and his daughters were advised that no accommodation would be provided and that Mr. Rosario was now not even entitled to a rent subsidy based upon his disability.

Stephanie did not accept this determination, reviewed the Department of Housing and Urban Development (HUD) regulations on her own, and advised the housing authority that the denial of an accommodation was contrary to HUDs own regulations, as the HUD regulations specifically permit a finding of disability on factors other than a finding from social security. It just did not make sense as if the Social Security Administration was wrong in its determination, Sammy would be entitled to retroactive payments; however, if the housing authority was wrong, it could not retroactively give Sammy his accommodation he needs to live independently. In August of 2013, Sammy Rosario and Stephanie Fernandez had enough, and they filed a Fair Housing Claim against OHA. Even after the filing, the OHA affirmed their denial, but advised Ms. Fernandez that “Should Mr. Rosario win his appeal to the Social Security Administration’s denial, please contact our office and we will reconsider our decision.”

Social Security reversed its decision and granted Sammy Rosario benefits back to September 2011 – less than three months after the filing of the fair housing complaint – but OHA did not reconsider. Instead, they advised that Ms. Fernandez would need to go through the entire reasonable accommodation process again. Instead of allowing Mr. Rosario the accommodation he needed, the OHA decided to use the accommodation as a negotiating point in the fair housing investigative process instead of immediately providing the necessary accommodation.

On March 19, 2015, Samuel Rosario had an accident where he fell, causing injury to his head and bruising to his eyes. He was admitted into the hospital for nine days, where he received needed physical therapy. Soon after arriving back home on May 29th, 2015, Mr. Rosario was found dead in the kitchen of his apartment. After an investigation and autopsy, it was determined that the cause of Mr. Rosario’s death was an unwitnessed fall, causing head injury. After completing the investigation, the Sanford Police Department determined that Samuel Rosario was injured while experiencing an unwitnessed seizure and was desperately seeking for help. The evidence of the trail of blood led from his bedroom to the bathroom, where there was a considerable amount of blood. The blood trail continued into the kitchen where Samuel Rosario experienced another seizure or fainted and hit his head, which was ultimately determined as the cause of his death.

On August 29, 2014, the Florida Commission on Human Relations determined that there was cause to believe that Samuel Rosario was denied a reasonable accommodation under the Fair Housing Act. However, unlike the reversal of the Social Security Disability determination, the denial of an accommodation cannot be granted retroactively, and Stephanie and her brothers and sister cannot bring their father back.

If Sammy Rosario had a live in aide, he would not have died. He would not have fallen, and if he had fallen, he would not have bled to death alone in his home. Over fifty percent of all fair housing complaints filed against housing providers in the United States are as a result of a denial of a reasonable accommodation or a reasonable modification in a home. Most of these accommodations cost nothing to a provider, yet may mean the difference between living independently and living in an assisted living facility or nursing home, or as in this case, the difference between life and death. For a federally subsidized housing provider, such as the Orlando Housing Authority, the subsidized housing provider has the obligation to pay for and provide a modification to the premises (such as a roll in shower or permanent ramp), or an accommodation by a change in a rule, such as a larger apartment to accommodate a live in aide, or relocation to a first floor apartment.

Disability Independence Group and Morgan & Morgan is pleased to represent the family of Samuel Rosario to ensure that a housing provider cannot ignore the needs of their residents with disabilities, and that accommodations are essential to independent living.