No Wheelchair Users Allowed in a Miami Beach Condo!

Litigation: Siler v. Abbott House Condo

By: Matthew Dietz

Rachel Siler was looking forward to moving to Miami Beach in April 2016.  Rachel went to art school in Chicago and after graduating from college she started working in the Independent Living and Disability Rights Movements. Aside from this passion she has also represented the disability community within the Occupy and Anti-war Movements. When she isn’t fighting for social justice she enjoys reading, antiquing and designing.

 For the past thirteen years, she had lived in cold and windy Chicago working at Chicago’s Access Living, assisting people with disabilities and a coordinator of Chicago ADAPT, an organization that has dedicated disability rights activists that engage in nonviolent direct action, including civil disobedience, to assure the civil and human rights of people with disabilities to live in freedom.  She found a job as an independent living specialist at the Center for Independent Living of South Florida and was ready to move to sunny Miami Beach.

As a wheelchair user herself, Rachel knew what she needed in order to live independently in Miami Beach.  She needed to live near to public transportation, a safe surrounding area, a building with an elevator, a residence that was affordable and accessible, and adequate green space so that her service animal, Minty could be walked.   Before moving down to Florida, she visited the area and hired a real estate agent. During her visit, she looked at eight residences. However, none these residences met her needs. When she returned home, the agent sent Rachel information about a condominium on Miami Beach at Abbot House Condominum, and it was perfect – one of the largest homes that she ever lived in.

She entered in to the lease with the owner of the condominium, and was told that a condition of moving in was physically meeting with the condominium association board screening committee and receiving written approval.  This was only supposed to be a formality.  So, Rachel spoke with the property manager, received permission to move her belongings in on May 21^st, and packed and started the trek across the United States with her mother and a friend.

When Rachel came to Miami on May 20^th, with her personal assistant, she did not get the reception that she was expecting.  The association manager met her and was shocked, he told her that she did not know that she had a “condition”.  She then went to a meeting with two of the board members of the Condominium.

Instead of speaking to Rachel, the board member started asking questions of Rachel’s assistant, as if Rachel could not speak for herself –

• “Do you live with her?”
• “Will you always be with her?”
• “Do you sleep with her?”

“No, she can speak for herself,”  said the assistant.  Rachel continued, and attempted to explain her existence, she explained that she works forty hours per week and she schedules personal assistants around that work schedule.  Notwithstanding the humiliation at having to explain the fact that she lives and works like any other person, the screening committee than attempted to try to convince Rachel why she should not live at Abbot House.

• The Board of Directors does not want to be held liable if something were to happen to you.
• The building only has one elevator, how are you going to work if the elevator broke?
• Fire fighters and paramedics do not want to climb stairs to rescue an elderly resident who was unable to evacuate due to a fire. The board did not have the funds to pay for modifications to make the building accessible.

Rachel told the Board that she would pay for any modifications to her own residence and the buildings elements are accessible to her and she did not need any modifications.  When they could not dissuade her, the association requested that she sign a waiver, releasing the condominium from all liability from any injuries.  To live in her home, she agreed, and then was provided the keys to the public areas, including the exterior door with the wheelchair ramp.

But before she could move in, the property manager told her that, the board that approved her tenancy to her face, now decided to decline her rental request, and followed up with an email:

This is to inform you that Ms. Rachel D. Siler, as a prospective tenant of Unit 4A, was denied by the Board of Abbott House Condo under the powers and duties of the Bylaws of the Association (See two (2) pages of the attachment).

By the understanding of the Board of Directors of ABBOTT HOUSE, INC. A CONDOMINIUM, the building has not the appropriate accessibility for people with disabilities conditions for the following reasons:

– The access to the building and other common areas as accessible route are not appropriate. We have not physical access like route, curb ramps, entrances and loading areas,

– There is not an appropriate parking space for a disable people. All of them are narrows,

– There is not a restroom and bathroom accommodation, etc.

All of the above are part of the main considerations of the Americans with Disabilities Act (ADA). Therefore, the Association cannot be responsible for any future claim requested by Ms. Siler and any other officer of the Miami-Dade County

Stranded in Miami Beach, with no home, Rachel Siler, an independent living specialist, was in a nightmare that she would usually be the person who these issues would be reported to.  But in a new city, she did not know where to turn.  She reached out to Disability Independence Group.

On Monday, May 23, Rachel Siler, with the assistance of her family and her personal assistant, decided to move into her condominium in spite of Abbot House refusal to approve her lease in spite of their denial.  Until a lawsuit was filed, Rachel and her service animal were harassed and attempts were made to block her and her personal assistant from the property.

It is unlawful to deny a person housing based upon insurance liability concerns. Historically, people with disabilities have been stereotyped in many different ways. Some of the stereotypes used to label people with disabilities as incapable of living independently, having a job, having a social and sex life and enjoying their life to the fullest.

The most common barriers to persons with disabilities are not physical barriers, but the attitudinal barriers that lead to this type of discrimination.  The Fair Housing Act does not allow for exclusion of individuals based upon fear, speculation, or stereotype about a particular disability or persons with disabilities in general. This prohibition is both in housing, under the Fair Housing Act and with other accommodations under the Americans with Disabilities Act.  As discussed in the comments Americans with Disabilities Act, one “cannot refuse to serve a person with a disability because its insurance company conditions coverage or rates on the absence of persons with disabilities. This is a frequent basis of exclusion from a variety of community activities and is prohibited by this part.” See 28 C.F.R. § 36.202.

Turns out that the least of Abbot House Condominium’s worries should have been whether Rachel Siler would not be able to get around in her wheelchair and would injure herself. Maybe instead of assuming she was an invalid who sleeps with her personal assistant, the Condominium Board should have started with the premise that she had a job, a life, and a passion for helping others.  The real liability was the failure to acknowledge Rachel Siler as the die-hard disability advocate who works to help others destroy attitudinal barriers and harmful stereotypes.

 

Litigation: Is Your Child A Runner?

Some children with autism, developmental or intellectual disabilities may wander off without any comprehension of possible danger.  This might include running off from adults at school or in the community, leaving the classroom without permission, or leaving the house when the family is not looking. While most children are drawn to water, many autistic children seem even more fascinated by it — and they’re also fearless.

 

On April 29, 2012, Hannah Sackman, a seven year old Autistic little girl drowned when she eloped from a housing development at military housing in Fort Gordon.  When Hannah’s mother was concerned with the size of the fens and the locking mechanism of the fence, she asked the management company if she could install additional locks on the doors that were higher up and out of Hannah’s reach. The house had three exterior doors and all of them had a locking mechanism on the knob and a dead-bolt – both of which could be unlocked from the inside with a simple twist and without using a key and Hannah’s mother was concerned she would figure out how to open them. In response to her request, the management said, “no, it was against policy” and would damage the doors. In 2013, Hannah’s parents sued the housing manager under the Fair Housing Act for the death of their daughter, and the case settled for an undisclosed amount in 2015.

What happened to Hannah Sackman is not unique, and the Fair Housing Act requires housing providers allow persons with disabilities or those associated with them to modify the premises if the modification is necessary for the person with a disability, and is done at the expense of the person with a disability.  For residents of public housing or other housing that is federally funded, the modifications must be done at the expense of the housing provider.  These modifications can be as simple as a lock on a front door, or grab bars in a shower; or as complicated or expensive, such as a pool lift, or installing ramps or sidewalks.

Kim Johnson came to Disability Independence Group because she was afraid to live in a home that would not be safe for her daughter.  Kalia is a 10 year old girl who lives with Fabry disease, which is a rare genetic disorder.  Along with a developmental disability, Kalia  also suffers from episodes of pain, is legally blind, hard of hearing, and problems with her gastrointestinal system and a cecostomy.  She requires twice daily flushing of her stoma which takes hours and hours of time.  Kalia is a runner, and whenever she has a chance, she tries to escape.  She knows how to unlock doors and turn handles.

In March of 2016, Kim was looking for a new rental home in Largo, Florida and found

Kim and Kalia Johnson

perfect home.  During the showing of the home and throughout the leasing process, Kim and Kim’s Mother, Donna, spoke with the leasing agent, and explained how urgent it was that they move and the needs of Kalia’s disability.  Then, with the help of Donna, Kim entered a lease for the home.    After signing the lease, the leasing agent, instructed Kim on the use of the front door lock.  At that time, Kim said that she would need to install a chain lock on the door to keep Kalia inside since she has a tendency to elope.  As with Hanna Sackman’s mother, Kim was concerned with the locking mechanism and wanted a mechanism that was higher up and out of Hannah’s reach.

The leasing agent refused.  Kim explained that a that the chain lock was the most reasonable modification asserted her rights under the Fair Housing Act, in order for her daughter …”to be able to have an equal opportunity to have safe access to the majority of the home.”  The leasing agent and owner refused to allow Kim to install a higher locking mechanism, as they believed that a chain on the door would damage the door.  Then the lessor refused to return the money Kim spent on the home, and refused to allow her to find another home that would be suitable for Kim and her daughter.

Reasonable modification in housing is the law.  A landlord cannot legally deny a reasonable modification to a home.  In 2008, the U.S. Department of Justice and the U.S. Department of Housing and Urban Development issued joint guidance on the requirements relating to reasonable modifications under the Fair Housing Act.[1]

Adding a chain lock to the front door is the most reasonable, most effective modification given K.J.’s disability.  The chain-lock modification is the most reasonable modification because the chain lock would be out of K.J.’s reach and would successful prevent K.J. from eloping. Pursuant to HUD’s guidance, adding a chain-lock to the front door is necessary because the other suggested modifications will not be effective.  By denying Kim and her daughter Kalia an accommodation, this landlord denied them a safe home, solely due to Kalia’s disability.

[1] Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Modifications Under the Fair Housing Act (March 5, 2008),  http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf (last visited May 10, 2016).

Summer Fun and Discrimination against Kids (with or without disabilities)!

By: Matthew Dietz

Unless the housing facility is a qualified 55 and over housing development, a housing provider cannot have rules that treat children differently, and less favorably than adults. When the US Congress amended the Fair Housing Act in 1988, it prohibited housing practices that discriminate on the basis of familial status.When it amended the Act, Congress recognized that “families with children are refused housing despite their ability to pay for it.” In addition, Congress cited a HUD survey that found 25% of all rental units exclude children and that 50% of all rental units have policies that restrict families with children in some way. The HUD survey also revealed that almost 20% of families with children were forced to live in less desirable housing because of restrictive policies. Congress recognized these problems and sought to remedy them by amending the Fair Housing Act to make families with children a protected class. So any rules, that do not have a legitimate safety justification, cannot indicate a “preference, limitation, or discrimination” against children under the age of 18. This includes rules that prohibit children from common areas in the facility with or without supervision, or limit the facilities of the housing development to adults. All rules must apply to children and adults equally, and cannot solely target children’s behavior.

If rules have a legitimate safety rationale, then such rules may be legitimate. But, again rules such as all children under sixteen must be supervised by an adult does not have a safety rationale, but a discriminatory basis against loud teenagers. On the other hand, a fifteen year old at a gym may injure him or herself on free weights without having supervision.

Summer camp must be inclusive

Over the past fifteen years, I have had several cases involving children who were not permitted to go to the summer camp of their choice, or were segregated in the summer camp because of the child’s disabilities. A summer camp, like any other public accommodation under the Americans with Disabilities Act, must provide reasonable accommodations for campers with disabilities, and must not segregate them from other students. Camps operated by governmental entities or colleges have a broader duty to accommodate campers with disabilities than some private entities that do
not have the same resources as a governmental entity. Examples of situations which I have encountered over the years are as follows:

• Children who are Deaf – Deaf kids have the right to a qualified sign language interpreter for all programs and services of a camp that involve communication that is long, complex, or important. Examples of this would be instructions on how to play a complicated game, story time, puppet shows, and educational instruction. If there are games that involve communication, then an interpreter would be appropriate so the Deaf child is included.
• Autistic kids – If a child who lives with autism has a one-on-one aide at school, for the same reasons, that child may need a one-on-one aide at a camp. Further, if a child needs further instruction in a game, or assistance with social interactions, that would be an accommodation that must be provided.
• Kids who have a medical condition such as Diabetes – If a child has a medical condition, or needs assistance with a medical condition, such as diabetes or HIV, then the question is whether the child poses a direct threat to his or her own health or the safety of others. If a child needs minor assistance with a medical condition, or can manage his or her own medical needs and monitoring, a camp cannot discriminate against these children.
• Kids with mobility impairments or other physical disabilities – Camps, like any other public accommodations, must have their facility accessible to children with disabilities. Older camps must do modifications that are readily achievable, easily accomplishable and able to be carried out without much difficulty or expense, and those camps altered or built after 1991 must be constructed accessibly. The camp is also responsible for making reasonable accommodations for campers with disabilities, which may involve some personal services, such as assistance in dressing, if similar services are available for able bodied campers.
• Kids with allergies – Kids who have allergies cannot be excluded from camps, and camps must be prepared to exclude certain allergens to accommodate a camper, and be trained in the event a camper has an allergic reaction. It would not be unreasonable to expect camp counselors to learn how to administer epinephrine auto-injector (“Epi-pen”) shots and dispense asthma medication, assist in administering Diastat for seizures in emergencies or otherwise teach camp counselors in basic first aid or CPR.

Parents can choose to send their child to a segregated camp, because some camps may provide special skills or advantages for children with disabilities, but the choice of going to a specialized camp is a choice, such as camps where all children are deaf.
However, all children may not be able to go to integrated camps. For example, there may be children with developmental disabilities or intellectual disabilities who would not be able to care for themselves at a sleep-away camp, and it would be a fundamental alteration of the camp’s programs to develop a program for one child’s disability. Further, if a child is dependent on mechanical supports, a camp would not be required to hire medical personnel to accommodate medically complex children. For these kids specialized camps are a phenomenal way to get out and enjoy the community. For example, Nicklaus Children’s hospital operates the VACC camp for technologically dependent children which includes swimming, field trips to local attractions,campsite entertainment, structured games, “free play”, to promote family growth and development while enhancing these kids’ self-esteem and social skills.

It’s so damn hot – my kid has asthma and needs an air conditioner

Last year, we represented a mother who had a child who lived in HUD-subsidized low-income housing. Asthma is often triggered by inhalation of air particles that contain allergens such as pollen, mold spores, dust mite droppings and animal dander. Air conditioners contain filters that collect and store these particles, keeping intake to minimum. Air conditioning also helps eliminate humidity on hot Florida nights which enables mold and algae to grow much more rapidly than it could if it were living in dry air. Some children and adults suffer from asthma to the degree that not having air conditioning may result in serious harm and hospitalization. Requesting to install an air conditioner unit in a home or apartment would be a reasonable accommodation for a person with a disability.

According to the Fair Housing Act, a tenant with a disability can request a reasonable modification. According to HUD Guidance, “A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas.” Under the Fair Housing Act, a housing provider must permit the modification, the tenant is responsible for paying the cost of the modification. If the housing provider is a public housing authority or a housing provider that receives federal financial assistance, the modification must be paid for by the housing provider unless providing the modification would be an undue financial and administrative burden.
Another example modifications can be a pool lift!

Discrimination in Pool Rules

• No inflatable flotation devices.
• Water wings, swimmies, floats, bathing suits rings, and other inflatable devices are not permitted in the pools.
• Absolutely no dogs allowed in pool area

Also, under the Fair Housing Act, persons with disabilities can ask for “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.” So when a person is required to use water wings, floats, special swimming devices, they can do so. In order to request an accommodation, the person needing an accommodation should ask the housing provider, and if the disability is not obvious, then the person may need to obtain verification from a doctor, therapist, or any other provider verifying the disability and need for the accommodation.

In addition, “no dogs allowed” rules do not apply to service or emotional support animals, where their presence is necessary for the person with a disability equal use and enjoyment of the premises. The Fair Housing Act and the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where others are allowed to go.

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 – Fair Housing Reasonable Accommodations – Hey Mr. Landlord, please can you make one little change so I can live in my home?

Last month, Disability Independence Group filed two cases, one on behalf of a woman who is blind, and another case on behalf of a veteran who had a massive heart attack and needed a simple accommodation.  Instead of allowing a simple and easy accommodation, the landlord decided to find some way to evict them.   Many landlords believe that the terms and conditions of the apartments they rent are not subject to modification – it’s “take it or leave it.”  But the Fair Housing Act requires landlords to make modifications to rules, policies or procedures so that tenants with disabilities can have the same opportunities to live in a home and in an integrated community.

BLIND AND WITHOUT A PATH – REID V. CRYSTAL LAKES

Debra Reid is an elderly woman who became blind as a result of a side effect of a medication for headaches.  For the past five years, she has learned how to become independent, including using a white cane, and she uses the county’s paratransit system to go to areas throughout the city.   Even though the landlord knew that Ms. Reid was blind, they would always give her lease, notices, and other materials in print to sign, and then she would ask her neighbor to read it to her.

Upon using the sidewalk and path of travel, Ms. Reid would use her cane to determine if a car was blocking her path of travel.  Often, vehicles would block her access from her unit to the parking lot where she would have paratransit pick her up.  The neighbors that would park there would yell and would harass Ms. Reid when she exited her home and attempted to find a way to reach the paratransit vehicle.

Ms. Reid went to the property manager for Crystal Lakes and asked her to block the one spot in front of her path of travel so she could get access to the paratransit vehicle.  She even offered to pay to have the space painted so other vehicles would not park in that space.  The employee of Crystal Lakes refused the accommodation and advised Ms. Reid to call the police if neighbors were harassing her about their vehicles.  She did, and still there was no help.

Finally, Ms. Reid contacted Disability Independence Group and Housing Opportunities Project for Excellence for help.  However, upon receipt of assistance, the landlord agreed to provide her with a path of travel but claimed that she had vandalized the vehicles with her white cane when she attempted to get to her car!  In addition, the landlord decided not to renew Ms. Ried’s lease for another year because they claimed to no longer accept her rent subsidy.  Miami-Dade County does not permit landlords to discriminate based upon the renter’s source of income.  As such, while the termination was due to the Ms. Reid’s request for accommodation, the proffered reason by the landlord was also discriminatory.

HEART ATTACK AND NO WAY TO GO HOME – PEREZ v. F.C.D.

Until April 5, 2015, Fabio Perez was an active man and veteran.  He suffered a massive heart attack while in the hospital undergoing a minor procedure and almost died.  His heart was so weak that he had an external defibrillator installed.  He could hardly walk without assistance or an assistive device.

Mr. Perez lived on the second floor of the apartment complex.  When he first moved in, the landlord asked if Mr. Perez could climb stairs, and he advised Mr. Perez that the elevators were only used for moving in and moving out.   The reason why the landlord did not have the elevators operating all the time was because the elevator company wanted to enter an agreement for $500 a month to maintain and repair the elevator and the landlord just did not want to spend the money.

After his heart attack, the landlord went to the ICU to collect his rent, and Mr. Perez was required to give his landlord his ATM card and PIN# so his landlord could withdraw money for the rent. Thereafter, Mr. Perez asked his landlord to make sure the elevators were turned on when he returned.  His landlord said no.  Thereafter, on April 29th, Mr. Perez got a letter from his doctor explaining that he could not use the stairs, and he called his landlord saying that he had a letter to prove he cannot use the stairs and requested that the elevators be turned on.  Again, his landlord said he would not turn on the elevators.

Mr. Perez contacted Disability Independence Group and asked for help.  Matthew Dietz contacted the landlord who assured that the elevator was always working, but when Mr. Perez was discharged from the hospital on May 8^th, the elevator was not working.  The elevator was finally turned on May 13^th.

While he was hospitalized, Mr. Perez hired a housekeeper to clean his house and feed his cat.  However, two days following his return, the landlord went to see Mr. Perez and demanded that he sign a new lease which ended his tenancy within a few months and included new conditions, limitations, and charges.  When Mr. Perez refused to agree, the next day, the landlord inspected the apartment for the first time and brought Mr. Perez’s neighbors to the inspection. The landlord moved and looked underneath furniture and cited Mr. Perez for having an unkempt apartment and for the presence of roaches.

This caused so much stress for Mr. Perez that he was required to go back to the hospital via ambulance.  While he was in the hospital, the landlord commenced eviction proceedings.  DIG is defending Mr. Perez and prosecuting the Fair Housing case on his behalf.

Please click

http://www.justdigit.org/videos/

fair

 Fair Housing Award – Florida Fair Housing Summit 2015

Advocacy Award Winner to Matthew W. Dietz, Esq.

Advocacy Award Winner to Ajit Bhogaita & Kane

Click here to read more

  

DIG Litigation Update – $625,000 settlement to ensure accessibility in Section 8 project based housing developments.

On April 17, 2015, Housing Opportunities Project for Excellence, Inc. (HOPE) and six residents of two developments in Miami Gardens and Opa-Locka, Florida settled a lawsuit with Charter Management and Miami Property Group, and obtained significant changes in the policies and procedures of their housing development to ensure that all residents are able to easily obtain necessary accommodations for their disabilities, required the construction and maintenance of children-friendly facilities and awarded $625,000 in damages and attorneys’ fees.

In Florida, there are approximately 21,000 units that are project-based, privately owned developments that receive Section 8 funding. The average income for the tenants of these units range from $10,000 to slightly over $16,000, and many of these residents are employed or on Social Security Disability or Supplemental Security Income. In these developments, the tenants pay 30 percent of income for rent. Tenant-paid rents for these types of units average under $300 per month, and U.S. Department of Housing and Urban Development (HUD) pays the remaining amounts. This HUD subsidized housing stock serves a large concentration of elderly households and families with children throughout the state of Florida.

There is a dearth of availability of accessible housing for persons with disabilities who reside in subsidized housing. Most of the housing stock for assisted housing is over thirty years old, and when built, there were no requirements for accessibility in housing. While HUD regulations require that property owners both ensure that all alterations to the property maximize accessibility and that they provide residents with modifications to their units, most times, these obligations are neglected.

In this lawsuit, the residents were denied accommodations, or the management placed unnecessary barriers to obtaining an accommodation. In this development all of the apartments had entry doors which required a step-up to get into the doorway. As such, a person who uses a wheelchair were essentially trapped in their homes, a person with mobility impairments could be assigned to live on the second floor, or required to park in a far parking space.

Most of all, many of the residents of these developments were not aware that the owner of these projects had a duty to provide the accommodations at the facilities expense, and not the tenant’s expense. As such, many tenants did not know what was available to them, or how to ask for an appropriate accommodation.

The settlement ensured that all of the residents are aware of the modifications that they could receive, from assistance animals, to ramps and grab bars; required extensive training and guidance, and provided additional facilities for children.

So this month’s article will conclude with a listing of many, but not an exhaustive account, of accommodations that can be requested, and what proof is needed to get an accommodation:

How to request an accommodation:

An accommodation can be verbal or in writing, and if the disability is obvious and the need for the accommodation is clear, than no additional proof is required. If the disability is not obvious or the need for the accommodation is not clear, than the housing provider can ask the requestor to provide verification from their medical provider of their disability and need for the accommodation. The housing provider cannot ask for medical records, and as proof of disability, must accept proof of receipt of social security determination of disability.

Accommodations that may be requested:

• Ramps in common areas or into doors
• Grab bars in toilet areas or baths
• Widening doorways
• Stoves or appliances with controls within the reach range
• Lowered peepholes
• Cabinets within reach range
• Lowered thermostats
• Constructing a usable doorway
• Roll-in shower
• Pedestal sink
• Hand-held shower nozzle
• Designated, exclusive parking space
• Lowered Mailbox
• Assistance and payment for relocation expenses during any renovations to the tenant’s home

Changes in policies that can be requested:

• Assistance animal (service animal or emotional support animal)
• Live-in Aide
• Transfer to a downstairs unit
• Transfer to a larger unit to accommodate a live in aide

If you have any questions about accommodations or your rights under the Fair Housing Act, contact DIG at http://www.justdigit.org, or (305) 669-2822.

Happy Fair Housing Month

April is Fair Housing Month and the time to celebrate the anniversary of the enactment of the Fair Housing Act. Many of you may be asking- “what exactly is the Fair Housing Act, and what are my fair housing rights?”- so here is a brief overview of the Fair Housing Act and some of the most commonly asked about areas of the federal law.

The Fair Housing Act was enacted on April 11, 1968 as Title VIII of the Civil Rights Act. Since 1966, Rev. Dr. Martin Luther King, Jr. marched in support of families who could not purchase or rent homes in certain residential developments solely on account of their race or national origin. Less than a week following Dr. King’s assassination on April 4, 1968, President Lyndon Johnson utilized this national tragedy to urge for the Fair Housing Act’s speedy Congressional approval. As Dr. King’s name had been closely associated with the fair housing legislation, President Johnson viewed the Act as a fitting memorial to the man’s life work, and wished to have the Act passed prior to Dr. King’s funeral in Atlanta.

The Fair Housing Act prohibits discrimination by housing providers, such as landlords and real estate companies as well as entities such as municipalities, banks and homeowners insurance companies whose discriminatory practices make housing unavailable to persons based on race, color, national origin, religion, sex, familial status or disability. State laws and local ordinances provide additional protections for other classes that are frequently discriminated against, including LGBT, age, source of income, marital status, and gender identity. For example, housing providers cannot deny or refuse to rent or sell housing, set different terms, conditions or privileges for sale or rental of a dwelling, falsely deny that housing is available for sale or rent based on any protected class. Similarly, in mortgage lending, a provider may not refuse to make a mortgage loan, refuse to provide information regarding loans, impose different terms or conditions on a loan or refuse to purchase a loan based on race, color, national origin, religion, sex, familial status or disability. The Fair Housing Act also makes it illegal for anyone to threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right and to advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or disability.

The Fair Housing Act includes additional protections if you have a disability. If you or someone associated with you have a physical or mental disability, your landlord cannot refuse to let you make reasonable modification to your dwelling or common areas, at your expense, if necessary for the individual with a disability to have an equal opportunity to use and enjoy housing or refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the individual with a disability to have an equal opportunity to use and enjoy housing. The Fair Housing Act also defines discrimination in housing against persons with disabilities to include a failure “to design and construct” certain new multi-family dwellings so that they are accessible to and usable by persons with disabilities, and particularly by people who use wheelchairs.

The Fair Housing Act requires all newly constructed multi-family dwellings of four or more units intended for first occupancy after March 13, 1991, to have certain features including an accessible entrance on an accessible route, accessible common and public use areas, doors sufficiently wide to accommodate wheelchairs, accessible routes into and through each dwelling, light switches, electrical outlets, and thermostats in accessible location, reinforcements in bathroom walls to accommodate grab bar installations, and usable kitchens and bathrooms configured so that a wheelchair can maneuver throughout the space.

If you have any questions, or need more information, please go to our website at http://www.justdigit.org, or call us at (305) 669-2822. For more details on the Fair Housing Act and your fair housing rights you can also visit http://www.hud.gov. HAPPY FAIR HOUSING MONTH!