This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
LAUREN DEMARTINO: Should we start with introductions? Is anybody here on the board of their HOA?
(Laughter)
>> I live in a private residence that's not even in a subdivision. I'm in North Carolina. They have a lot of HOA we don't have one.
I mean, we're within the city, but we're not within a community, if that makes sense.
We all know each other it's only two blocks. We all know each other. We almost got in trouble for renting goats because you're not supposed to have farm animals.
But they said, you're only renting them for two weeks?
I'm not going to mess with you, for two weeks.
And she would have had all the kids on her back because all the kids on the block were making special efforts to visit our house so they could see the goats. So she would have had all those parents up in arms because they were really into seeing the goats.
(Laughter)
LAUREN DEMARTINO: Should we get started? I mean, this definitely -- I'm glad we don't have a PowerPoint, because in a room this size it starts to get awkward.
(Laughter)
But I think it makes sense for us to get an understanding of who's in the room, have you worked on the Fair Housing Act just so we know how deep to go or how far back to go? Would you like to start?
>> Sure, I'm Sabrina, a law student at University of Maryland. I haven't done any work but I've studying a little bit of Fair Housing Act with disability rights issues.
>> Hi. My name is Cass Fisher, the disability legal fellow with the Fair Housing Legal Center in New York City.
>> Congratulations on that case you guys just filed. Boulevard?
>> I can't remember the name, but the assisted living case.
>> I did a lot of research on that. I'm really excited.
>> Do you want us to make room here?
>> I will accept my place at the head of the table.
(Laughter)
>> I spilled some raspberry seltzer.
>> So it's just gonna smell good, thank you.
(Laughter)
No problem.
>> We're just going around the room, introductions, so we can get into where everyone is coming from, since it's such a small group. Would you like to go?
>> Cool. I'm Lucy, I use they and she pronouns, I'm a housing attorney at Take Root Justice in New York City. Previously done disability discrimination work, and I was at the ACLU doing mental health crisis response for my fellowship. So have been a little bit all over the place, but currently doing housing justice.
>> I'm Sam, I'm a senior attorney with Indiana Disability Rights, and one of the areas that I cover is housing.
>> I'm a presenter. Have you gone yet?
>> I can go. I'm Nancy, I'm a private attorney, and I do different areas of disability. I don't mess with housing much. But I do have a friend, as I said, who have concentrated on HOAs.
So I'm sort of wondering what I can share with her.
>> And are you in North Carolina too?
>> I'm in Durham, North Carolina. Private attorney. My office is in Chapel Hill, but if you know the area, they're right next to each other.
LESLIE DICKENSON: I'm Leslie Dickenson with Disability Rights Maryland. I manage the housing team there.
MICHAEL ALLEN: I'm Michael Allen, currently at Relman Colfax, which is a plaintiff-side antidiscrimination firm in DC, but with a national presence. And before that I was at the Bazelon Center.
LAUREN DEMARTINO: I'm Lauren DeMartino, with Brown, Goldstein & Levy, a firm here in Baltimore that does mostly civil rights work.
And I focus on fair housing and disability rights there.
So this topic is the perfect overlap.
Not to put you on the spot because I know you just walked in, but we're doing introductions.
>> I'm Rebecca, I'm late.
(Laughter)
And I'm a clinical professor at Cardozo Law School in New York City.
LESLIE DICKENSON: A lot of New Yorkers here!
LAUREN DEMARTINO: I hail from New York. I moved to Baltimore from New York City. So glad to have you all here.
>> I'm so sorry, did I leave my phone in here, you guys?
>> Is that a phone?
(Laughter)
>> It is A phone, yes.
>> There's not another phone that we see in the area?
>> Take this one!
(Laughter)
LESLIE DICKENSON: So since you just came in, I'm Leslie Dickenson from Disability Rights Maryland.
MICHAEL ALLEN: Michael Allen, Relman Colfax, DC.
LAUREN DEMARTINO: And Lauren DeMartino, Brown, Goldstein & Levy. We're the panelists that are --
(Laughter)
participating from the audience today.
Would it be good to go over the Fair Housing Act, the parts of the statute that are relevant? I don't want to spend time if it's something that everyone --
>> I feel pretty good.
LESLIE DICKENSON: Just the one line -- the most important?
(Laughter)
LAUREN DEMARTINO: The key is the equal opportunity to enjoy one's dwelling to the same extent as others. So we're looking largely at 3604, 3615, which has come up in the context specifically of HOAs, in my experience, and 3617, which addresses retaliation, coercion, and intimidation.
And in terms of its, you know, connection with Olmstead, for obvious reasons, the ability to get the accommodations necessary to live in the community is key to preventing folks moving into institutionalizations.
Our plan was kind of just to think about, as we were talking about how to address this, or themes, we saw some commonality in, like, the different types of issues that may not seem to be directly related but are involved with disability rights and access under the Fair Housing Act.
And the different processes, like, different parts of the lifespan of homes, like looking for a home, applying for a home, living in a home, and eventually moving from or being evicted from a home.
So if that works for everyone -- but definitely don't save questions until the end.
>> Are you going to get into how many modifications are allowed beyond the normal modifications?
LAUREN DEMARTINO: I don't know what you mean.
>> HOAs, at least where I live, they're mostly homes lined up next to each other. They're not apartment buildings. And someone with a disability, for example, might need a ramp to get in.
But HOAs don't like ramps because they look tacky... are you going to get into that issue?
LAUREN DEMARTINO: I don't know about specifically ramps, but I think in general, like the common areas or something for HOAs, or the types of modifications that come up. So we can kind of see where the conversation takes us for sure, but it's good to know that that's of interest so we can make sure we cover that.
MICHAEL ALLEN: Are there other particular issues that are most on your mind? Again, it's more of a conversation than a presentation, so, what kind of things are --
>> Yeah. I'm thinking about like the regulatory side of where we're seeing a lot of cuts via DOGE with HUD funding.
And I know for a lot of fair housing organizations that funding is used for testing and investigations, which documents housing discrimination and creates evidence and concrete arguments against housing providers, because a lot of this is so vague and so -- or not vague, but it's oftentimes a lot more -- I'm forgetting the word -- a lot of ghosting. A lot of pushing back and delaying, which is hard to document.
So I was wondering if you guys have been thinking about that as well.
LAUREN DEMARTINO: Interesting you say that. Because as you might notice, Michael is not Lila.
(Laughter)
MICHAEL ALLEN: Because Lila is working on the TRO that's being argued --
>> Oh, for NAFA?
(Laughter)
>> So you haven't had a gender switch or --
MICHAEL ALLEN: You know, things happen.
>> I mean, you can be anything you want to be, but --
LAUREN DEMARTINO: So yeah. I think we can definitely make sure. Because it's sometimes hard to have these conversations. I went to a civil rights conference at the beginning of February to talk about the vestiges of redlining, and it was not supposed to be on the agenda to talk about these changes, but of course you had to. The room is on fire and you're supposed to talk about something else.
So I think that's a great point.
>> Some of the more difficult issues I've had have been with local government ordinances, and a case that I'm currently litigating in federal court is my client has therapeutic chickens, and the -- we're in federal court over it.
LAUREN DEMARTINO: Yeah, okay.
>> So... I'm hoping that we won't be for long, but it could be -- I think the first case to be decided on chickens. I've not found any yet.
LAUREN DEMARTINO: Yeah, interesting. I can't say that I've encountered that issue either.
MICHAEL ALLEN: My firm had a guinea pig case. We'll talk.
(Laughter)
>> I think that brings up something that I'm interested in, the utility of pulling something into federal court, particularly in New York, where the housing court is the Wild West.
And they all suck.
(Laughter)
And they're very desensitized to, like, the horrors of everything that goes on. So like, what is the potential advantage of also bringing a federal disability discrimination claim so that you can pull all of that into federal court?
MICHAEL ALLEN: As long as it doesn't get too warm.
LESLIE DICKENSON: I'll close it part way. It's just -- there's -- we'll probably still hear them.
LAUREN DEMARTINO: Those questions are also going to depend on state, and the court, federal court, right? So like, New York might be worth it. You know.
But those are great questions.
Well, should we start with the home search? I know...
LESLIE DICKENSON: Sure.
MICHAEL ALLEN: Am I supposed to go first because it says Lila here?
(Laughter)
I just want to make sure, because I'm a late sub here. I think the important thing to think about the Fair Housing Act is that the protections, you know, there are seven protected classes. Disability is one of them.
And in the context of disability protection -- and the other protected classes -- the nondiscrimination provisions apply, as Lauren was saying, throughout the lifestyle of the time that you're living in a place, whether it's for sale or for rental, and all the other variations that come in between.
So at any point along the way, when you need to have either a nondiscrimination protection, you've got arguments that, you know, intentional discrimination is bad, and disparate impact discrimination is bad. That is to say, neutral rule with a harsher effect that can't be justified.
And of course, in the context of disability, you've also got reasonable accommodation, reasonable modification.
And then there's a requirement in multifamily housing that you have the housing built initially after 1991; apartment-style housing has to be basically accessible.
And the Fair Housing Act, I would say, is a minimal accessibility standard.
The thing I'm supposed to talk about is that variation on looking for a home, where we're not talking about multifamily housing. And we're not talking about, you know, kind of a rental agent or a realtor who discriminates against you.
But a case that my firm brought -- and Lila, were she here, would be able to talk about it today -- it's actually two cases against two big home builders. One is called Horton and the other is called Lennar.
And we actually have two cases out there that focus on whether or not a builder of new single-family for-sale homes has an obligation to work with a buyer who needs to have accessibility modifications made before the home is constructed.
So often we hear about modification cases in the context of rental, which is you move into an apartment, and you need the ramp. Or you move into the apartment, and there aren't grab bars already installed.
But the Fair Housing Act isn't limited to rental contexts.
So we have sued Lennar and Horton on the theory that the obligation is to allow the modification to take place. Under the Fair Housing Act, the costs of modification are borne by the resident, shall we say, whether it's the tenant or the homeowner. In this case, we have an organizational plaintiff and we have three individual plaintiffs who offered to pay the full cost of doing things like installing a roll-in shower from the very beginning, rather than buying a house that has a big curb on the shower and then having to tear it out and put in a roll-in shower. Or the installation of grab bars at the very beginning.
Or putting in a 34-inch door rather than a 32-inch door. And again, you know, the home buyer is saying, we're prepared to pay for the full cost of it. So we allege that Horton and Lenarre have a policy of, not just in an individual case that they turned somebody down, but they have a policy of not making those modifications, and that's a violation of the Fair Housing Act.
So we are in the midst of litigating that case. But it's clear that, again, we're not talking about a designed construction accessibility case, we're talking about a modification case.
And we have gotten past a motion to dismiss here. I suspect we'll get past summary judgment as well. I don't think that these big home builders are going to want to have to litigate this case. I suspect that we'll be able to talk about a settlement at some point before too much goes on.
But it's, again, to be clear, entire life cycle of the case, and also.
>> So somebody contacted our organization a few months ago, and I'm -- we didn't end up taking the case, but I think it was against -- the claim was against the builder. It wasn't a refusal to consider it.
But I believe it was -- the reason we turned it down was essentially negligence, that they didn't actually construct it properly how they had agreed to it. At that point, we said, well that's really just a breach of contract.
That's not a discrimination case.
And I think your case would have that difference of refusing to even talk to the homeowner about how to build the home.
MICHAEL ALLEN: That's right. Let me just say 15 seconds about the second case and then I'll pass the baton to whoever comes next in terms of the presentation.
But we have a case in Alabama now that's on the verge of settlement.
It's on behalf of an individual who asked for compliance with certain accessibility standards. There are certain kinds of housing that is sold as tiny houses but in fact qualify as new construct under the Fair Housing Act of 1991. And this was new family housing that was not provided by Lennar in Alabama. That case is on the verge of settling too.
We take cases to try the expand the law as best we can. I hope, if nothing else comes out of this presentation, let's just sort of swap contact information, because as you all are seeing cases coming up, perhaps we can help you noodle them out.
>> Now, you're saying apartments. We have mostly single family homes in our HOAs.
MICHAEL ALLEN: Okay, we'll get to HOAs.
LAUREN DEMARTINO: It's not exclusively HOAs.
>> Okay. Just wanted to --
LAUREN DEMARTINO: Yeah. I mean, the requirements, obviously, would be different. But I think the homes that you're talking about being built by Horton and Lennar could very well be eventually part of an HOA.
That kind of development.
MICHAEL ALLEN: But this case is against the builder. So it's a different assertion of rights.
>> You're trying to put accessible aspects into the home before it's constructed, and the builders are balking.
MICHAEL ALLEN: Yes.
LAUREN DEMARTINO: Another case, another type of issue that I think we're seeing in search of home, and it will depend on the state, is source of income discrimination.
Again, this is another type of tangential -- it's not necessarily brought, but can be brought under disability discrimination -- but there are, I think right now it's 21 states and DC that have source of income protections. There was some guidance from the federal guidance on that... but I don't think there's a viable path -- I would love to hear your thoughts on that.
But in terms of --
LESLIE DICKENSON: Not now.
LAUREN DEMARTINO: In terms of bringing it under state claims, source of income discrimination is, like, directly involved with disability rights, because very often, it is folks with SSI or SSDI that are receiving vouchers. I think it's one-third of voucher holders, housing choice voucher holders in the country have a family member with a disability. So one issue we were seeing come up quite a bit in Maryland -- so there's the source of income discrimination law that was passed here in 2020, so it's fairly new.
Since then, what we have seen is, "yeah. Yeah. We take vouchers.
But you still have to show 2.5 times the monthly rent in income", even though -- meaning like the full monthly rent. So if it's like 2,000 dollars for the unit, they want to see 2.5 times that, even though after the voucher, the person was only responsible for paying 200 dollars.
Which obviously, making 2.5 times 2,000 dollars would make someone not qualify for a voucher or not qualify for Social Security. It feels so obvious!!!
(Laughter)
But lo and behold, I didn't have this case at the trial level, but it was brought -- it was a woman with a disability who had an SSDI -- or SSI was her main source of income, was denied units. They said, no, we accept vouchers... but you don't have the income. They asked for an accommodation specifically because, you know, of her disability. To that policy, they refused.
The trial court ruled in favor of the property management company because they said it was a neutral law that applied to everybody.
And I was brought in on appeal, and we were granted cert to bypass the intermediate appellate court. So this is being heard in the Supreme Court of Maryland in the beginning of May.
But a lot of other states have laws like this. There's good case law in New York, the Parkchester cases. We're also citing to law in Connecticut, New Jersey, and then there's a lot of other states that have this requirement baked into the statute.
So like, they kind of read the writing on the wall and right at the outset had said, you know, this workaround is not going to be allowed. Like in the Maryland case, the case is Hare v Brown. I'm sorry, I lost my train of thought, I saw the camera!
(Laughter)
No, I'm kidding.
What was I going to say?
MICHAEL ALLEN: Lots of states have source of income protections --
LESLIE DICKENSON: You were talking about they had -- the commercial -- well --
LAUREN DEMARTINO: The commercially reasonable, thank you. So Maryland does have something that says, you know, landlords can verify income, but it has to be in a commercially reasonable and nondiscriminatory manner.
So we're arguing that it is not commercially reasonable or nondiscriminatory to require someone to have that requirement. So we shall see.
But I think, you know, keeping an eye out for these cases, I think for a lot of reasons, people may move towards more state statutes in the coming at least several years. So you may see more, you know, these types of issues come up. Because if someone is bringing it in federal court -- like, you could have brought this as a disparate impact in federal court, on race, on disability.
But -- yeah. So we're going to see more of that come up. Leslie, I think you're up.
LESLIE DICKENSON: So I'm going to talk about, since like you, I work for a nonprofit, Disability Rights Maryland. We do eviction prevention and fair housing work.
So I'm also going to talk about vouchers, like Lauren was just talking about. Just as examples, I don't know how much most people know about vouchers, but HUD, every fiscal year, they set the fair market rents, so, you know, X amount -- pretend it's 2,000 dollars for a two bedroom, I don't think it's that amount. So once someone is found eligible, they generally have 60 days to use the voucher, which is not a lot of time.
And we're in, of course, a housing crisis.
Now, there's a couple things.
We regularly use reasonable accommodation requests to extend that deadline, that 60 days. But we're talking about the accessibility piece, where not only is it very difficult -- much more difficult to find accessible housing, especially fully accessible UFAS housing, but it even seems to be -- what we're noticing -- and this is anecdotal, but we're noticing that landlords and property managers seem to be charging more, you know, for ground-floor units, for units near elevators. This is especially true when people try to transfer, which I'll talk about later.
But, so, you have someone with a voucher who needs an accessible unit, and the voucher, the payment standard -- you know, they can't find something that's accessible that's within the payment standard.
So they can request, as a reasonable accommodation, to increase the payment standard 120%, so that would be, I don't know, 2,000 times .12, I think. So it goes up to maybe 3,000 or 2500 dollars.
>> Lawyers can't do math. That's why we do this!
(Laughter)
LESLIE DICKENSON: So to do that, it's like you're dealing with this little bureaucracy, the Public Housing Authority, who, again, takes an extensive amount of time. So you have -- so basically -- anyone who has a voucher is going to have a really difficult -- even if you're not getting to the discrimination piece on source of income discrimination, just being able to find housing that is accessible for your disability within a timely manner. And, I mean, we, at Disability Rights Maryland, because we have -- so we have different consent decrees.
So we have a consent decree with Housing Authority of Baltimore City. So we know we can get as many reasonable accommodation extensions as our clients need, because, you know. We already have, you know, a consent decree.
And we'll just demand it and they will do it.
But I know there's people -- I see it on the listserv, the housing justice listserv, where they're getting one extension and that's it.
And in some of our rural counties, where they are like that too, is just because someone has in their administrative plan -- so all the public housing authorities have to have an administrative plan for their vouchers, so they might say, okay. You know, everyone gets one extension.
And then as a reasonable accommodation, someone might get one more.
And that's it. You can never have another extension. Which is not true under the Fair Housing Act. You can continue to request reasonable accommodations.
MICHAEL ALLEN: Until it's no longer reasonable.
LESLIE DICKENSON: Until it's no longer reasonable. Yes. So that, yes. They could at some point say that it's a financial and administrative burden to extend the voucher, you know, if it's multiple times. Or they can -- well, I don't -- I'm not sure they can claim it's outside of -- I can't really think of that phrase -- a fundamental alteration to the program. Those are two ways to find reasonable accommodation requests not reasonable.
And so that's -- and then we also just use them for extensions for people who just need help, you know.
They maybe don't understand the rules because there's lots of voucher rules. And you'd have to go to a little voucher meeting when you first get it. And, you know, under COVID, people had to do it online, so I had a couple clients who, you know, we just had to get a reasonable accommodation just to be able to have their own private session, you know, to have the voucher explained to them. But, so, yeah, I think the takeaway, though, is always ask.
Don't assume that you can't get it. Just always ask for a reasonable accommodation. Because people wait for over 10 years to get their voucher, and then they're given 60 days, and, you know.
So yeah.
MICHAEL ALLEN: Okay, I think it comes back to me. Just trying to cover all of these concepts from, like, the life cycle piece. So a few years ago, when I came to the firm.
I started doing Fair Housing Act accessibility cases, because I thought it was important that new apartment-style housing that was being built be built accessible. Maybe we could build ourselves out of the lack of accessible housing. Turned out not, mostly, to be true. We've had to sue 15 large development companies, you know, developers around the country.
But a few years ago, it occurred to me that if I kept trying to get market-rate units to be made accessible, that was a less good thing than if I tried to make affordable units accessible.
And so we shifted our emphasis, probably 10 years or 12 years ago now, to looking at big-city affordable housing programs.
Now, I'm not talking about housing authorities.
I'm talking about the separate programs that cities like Los Angeles, Chicago, New York, Philadelphia, San Francisco, all the big cities run, with CDBG and home block grants.
So in Los Angeles, we filed a case in 2012, settled it in 2016. Los Angeles is still in the midst of remediation. But there will eventually be 4,000 UFAS-level accessibility units.
And by UFAS, Uniform Federal Accessibility Standards, which if the Fair Housing Act is a modest level of accessibility, UFAS is better for people with profound disabilities, things like roll-in showers, lower countertops, etc.
And we got them to change all their policies about how these private owners -- because they're not city owned units. They're city funded, but now the managers need to run them in compliance with all of the Fair Housing Act, ADA, and 504 requirements. And this has created a complete culture change in how these projects are run, so that if you need an accessible unit and you're on the waiting list for an accessible unit and there's somebody who isn't a person with a disability who's in that accessible unit, that person has to be moved at the earliest possible opportunity to another unit to free up the accessible unit.
That's just like good public policy, right?
We're doing that same case now in Chicago.
And we got a good summary judgment decision last fall -- I can't remember exactly when it was. And as a consequence of that, we're now in settlement talks with the city of Chicago, which is probably going to have to provide about 3500 UFAS level of accessibility units, and completely change the policies.
Somebody mentioned Wild West before. It was the Wild West in both these big cities, because as soon as these developers and managers got the money, they went about, did whatever the hell they wanted anyway.
And the city never told them, you're not doing this right. They never said you're not building them right.
And the city, like, had nobody watching this at all. Let alone who's living in the units, are people getting reasonable accommodations, are there effective communications things that are complied with?
The summary judgment decision basically says, City of Chicago, once you accept this money under 504, or once you decide to run a housing program under Title II of the ADA, every single unit in your entire portfolio is subject to the accessibility requirements.
Architectural accessibility and program accessibility.
So I think we're going to try to sort of generate more interest in big cities that have these portfolios of 10, 20, 70,000 units to make sure that they comply with all of the heightened UFAS requirements.
LESLIE DICKENSON: Right.
And so you're suing the cities for the funding that they are giving to the developers.
MICHAEL ALLEN: Right. So you can sue each developer individually, but there's probably a statute of limitations problem, and you'd have to sue 700 plus developers. So we've had success with this so far in two cities.
Are we coming back to you on the Baltimore consent decree?
LESLIE DICKENSON: We can.
So similar, but different. In about 2002, JRM, which was Maryland's Disability Law Center, filed suit against Baltimore's housing authority for numerous problems with the administration of their housing.
But it was included that they had zero accessible units.
We went out, like, just to all these public housing -- you know, oh. They were so awful and decrepit. So there was pretty early on a consent decree. It went through settlement, mediation, settlement.
And so there was a requirement -- not as many -- 756 UFAS units and 75 near-UFAS units. So it's been, you know, it's been a long time.
And the housing authority did -- they fulfilled it, but then there's a lot of demolition and reconstruction, so basically, they demolished some, so they've had to rebuild others.
And I know at new mixed-use -- not mixed-use, mixed-income, Perkins, they just certified another, like, two or three UFAS units. So these are -- they have UFAS units in both the public housing and the market rate units.
And I just learned, interestingly -- so these are actually pretty nice brand-new apartments. And the -- if somebody has a voucher, they can actually use the voucher at the market rate units, and the market rate units are actually set at the payment standard. The appropriate payment standard. So somebody with a voucher can actually apply and, you know, get in, too.
I'm just saying, you better go, because they're gonna run out. The few accessible units in the market, at the market rate. But I don't know if you want to hear the other parts of it.
>> I have a question. You said that if somebody is not disabled and is in an accessible unit, they need to move out and let somebody in.
What happens if they say, well, I want it in case when I get old I need it?
LESLIE DICKENSON: It's in their lease.
MICHAEL ALLEN: That's a nice thought.
LESLIE DICKENSON: We have that too.
MICHAEL ALLEN: The problem in the two cities that we sued in was that the rider or addendum was not in the lease. The law requires that if you live in an accessible unit and you don't have a disability, the provision is, when asked, I will move. So it's sort of a function of lease enforcement.
So we had to insinuate it into the leases in 700 developments in Los Angeles and 550 in Chicago. Then it has to be enforced. So that's the cultural change that has to happen. The city has to have a compliance mechanism to make sure that the owners are doing those things.
Otherwise, we have a precious and limited resource that's being used by a population that doesn't need it.
>> Oh, they don't need it yet.
MICHAEL ALLEN: We are all gonna get there and need it. But in the meantime, it should be in the hands of somebody who actually needs it.
LESLIE DICKENSON: Yes, and in the Bailey consent decree, we have the same requirement. If somebody is in an accessible unit and don't need the accessible features, they have to agree to move. They have to have a place to move.
You don't kick them out on the street. You make sure that they have a place that's opened up where they can move, and then the person who needs accessibility --
>> It's not like one day you're abled and the next day you're not. You could be --
>> You can't be sitting on accessible housing until one day maybe something happens.
>> I'm saying, you might need some of it.
MICHAEL ALLEN: When your turn comes --
LAUREN DEMARTINO: Your lease provision will say that you need someone else to move and you'll have to move into an accessible unit.
>> You have to show yourself to be a qualified individual with a disability, so if you were -- I assume -- in a position where you wanted to keep the apartment, would you probably have to show that you're a qualified individual --
>> Yeah. With a mobility disability that you --
LAUREN DEMARTINO: We're all one minute away from --
>> I'm saying, we have spent a lot of time renovating our downstairs so it's now accessible, with 36-inch door ways and a ramp. We've done all that.
But we don't need it yet.
MICHAEL ALLEN: Well, but that's a single --
>> You have the privilege of owning property and you can do that now, and that's great.
LESLIE DICKENSON: Well, like, in Baltimore City, you know, somebody is living. You know, they don't have an accessible unit. And they need it.
They become disabled or, you know, worsens.
And they can put in for a transfer.
LAUREN DEMARTINO: Right.
LESLIE DICKENSON: Now, it's gonna take a while. But that's what you do. In the consent decree, we also have what's called immediate needs, which still take a long time.
They're not immediate.
But they're quicker than your regular transfer!
But, you know, you just, you work with what you have. I mean, and so --
>> I mean, you're one fall away from being...
LESLIE DICKENSON: Yeah.
>> In need. I'm just saying.
LESLIE DICKENSON: This country is aging, and as it continues, that's going to become more of a priority for more accessible units to be built.
LAUREN DEMARTINO: That's the solution. Is more accessible units. Should we move on to --
MICHAEL ALLEN: Well, I think -- I sense that there are questions still before we go on to while living in the home.
>> I just want to say I'm really excited to hear that this is happening, because like, working at the Fair Housing Justice Center in New York, we do a lot of construction testing and litigation for units that are just not accessible to most people, period. And especially for folks in the disability community, which historically have been folks who don't have a lot of access to monetary privilege, you have these units that are hypothetically accessible, which are inaccessible because they've built is against the law, and are also 4,000 dollars for a shoebox. So hearing that there are accessible units that are visible within a voucher unit or even below voucher and are accessible is really good. Because I know in my office we've talked about this a lot. We have all this work related to units that are, wow, these are now accessible, except no one can afford them.
And they're just empty.
LESLIE DICKENSON: Right, right.
MICHAEL ALLEN: There's probably a case to be brought against NYCHA too. Although there are probably many cases.
(Laughter)
>> When I was in law school almost 30 years ago, I was an intern on the case against NYCHA. There have been many about the wait list.
LAUREN DEMARTINO: It's a little slow.
>> NYCHA is --
MICHAEL ALLEN: New York City Housing Authority.
>> New York is pronounced "nigh"? Most of us wouldn't necessarily pronounce it like that.
(Laughter)
LAUREN DEMARTINO: Okay, should we move on to the next phase?
Okay, so you've got the home, you're in the unit, and there are requests for accommodations or modifications. Do you want to kick us off?
MICHAEL ALLEN: Sure. So Clover, the Clover Group. I can't remember, built and owned several dozen reasonably affordable -- I mean, not deeply affordable, but naturally occurring affordable -- developments that tended toward serving seniors.
And part of this was some other nasty stuff about the Clover Group, which decided to locate in certain areas where Black and brown people were less likely to apply.
But that's not our case. That's somebody else's case.
But Clover decided it was going to do two things.
One, no matter how nicely you asked or how much you had the need, when you requested a designated parking space on account of a mobility impairment -- that is to say, I need to be able to be within 50 feet of my front door, whatever the case may be -- the answer was, no. As a matter of policy, we do not allow that.
So some of the individual clients in that case, they had these just stirring declarations about how "I slept in my car for fear I was not going to be able to get to the door, because I was 200 feet from my door". Or, I didn't go out, I missed meetings.
I missed church for weeks at a time, for fear that when I got back, the close parking space I had at the time would no longer be available to me.
The other thing Clover did, god bless them --
(Laughter)
Was that ground floor units and units closer to the elevator should have a premium price on it.
LESLIE DICKENSON: That's right.
>> Of course!
MICHAEL ALLEN: So under the Fair Housing Act, if you don't have an elevator, all ground floor units built after 1991 have to be minimally accessible.
And if it's served by an elevator, all the units have to be accessible.
I guess the thinking was, here, gosh, it's a shorter trip.
If you're right off the elevator, then you pay more for that.
And I guess, you know, in a free unrestrained market, that might actually be true. The problem is that it has the effect of taking the very units that people with disabilities are most likely to use for accessibility reasons, and making them further out of reach economically.
LESLIE DICKENSON: Right.
MICHAEL ALLEN: So I'm going to let you in on this -- the ink is not dry on the settlement yet, but we have the settlement in principle, that the Clover group all these two or three dozen properties is going to establish a reasonable accommodation policy for the purpose of assigning parking spaces for people with disabilities, and is also going to do away with the premium for the units that are on the first floor and close to elevators. It was not easy. This was, you know, a little over three years of litigation.
And Lila would have been reporting on this today. This was a case on which she worked.
But I'm here to give you the good news that -- oh, and one other thing. Not only for the benefit of people who live in those three dozen developments, but we try to do the best we can to publicize these wins and settlements.
LESLIE DICKENSON: And where was this?
MICHAEL ALLEN: Um, they were all over the place. They're based in New York, but I think they're in six or seven states. I'll look it up for you.
>> What court were you in?
MICHAEL ALLEN: Lila would know this. I'll get back to you.
LAUREN DEMARTINO: Was it Ohio?
MICHAEL ALLEN: It was somewhere in the Midwest. And anyway, once the settlement is inked, we'll talk about it and try to spread the word as best as we can.
And I'm handing it off to Lauren.
LAUREN DEMARTINO: It's interesting, too, when it's in homes that are intended for seniors, you have to anticipate this.
And I've had arguments about parking spaces, too, and one was because it was the person's aide that drove the car. Their policy was that my client was not entitled to a car because you have to be the driver of a vehicle, which feels like a pretty straightforward accommodation for someone who needs someone to drive a vehicle.
>> I had one where everybody had assigned parking spots. My client didn't have a car. Her partner, who stayed with her three, four nights a week, drove her to appointments, would park in her spot.
And then they started to say only the renter of the unit could use that spot. But then the onsite property manager, who came up with that rule, quit, and --
LAUREN DEMARTINO: Oh, good.
>> New management.
LAUREN DEMARTINO: I was going to say, I could send you the law I found.
(Laughter)
>> We didn't even end up having to write a letter on that one --
LAUREN DEMARTINO: All these things, it feels so obvious, but there's not a case law on it, because those things don't get litigated, because they're silly. It's so obvious!!!
MICHAEL ALLEN: I'll just put it in -- Northern District of New York was the Clover. Not the most hospitable place to be.
>> They have such a nice welcoming name!
LAUREN DEMARTINO: Yeah, I know. Moving on to a couple HOA cases. One that we actually did have to file on, which again felt silly, but this was an HOA with lots of feelings.
And lots of personal, I think, dynamics, but my clients were a man with disabilities in his 20s and his mother as his guardian.
And the family had bought this townhouse or this unit for their two sons, and one actually ended up passing away before they got in the unit, but specifically for their children with disabilities to have a home. Their son, Jack, he received round the clock care through the Arc. And as part of the services -- and he also was in a day program at the Arc.
And his caregivers used the Arc van to transport him, because he was, you know, a grown man that would lash out. So if he was in a regular car, sometimes he would try to grab the steering wheel or someone's arm. So they needed a back seat, they needed space, they needed certain types of buckles, all these things. So it just made sense to use the Arc vehicle.
HOA doesn't want the van parked there. No commercial vehicles in the parking lot. Even though they were parking in an overflow lot that was completely empty. So they, you know, reached out -- and this is an interesting -- like, we're going to get to this when we talk about tools and stages -- interesting because Leslie's team was the first to be like, oh, yeah.
We'll write a letter. This is a reasonable accommodation request.
And the HOA was just like, nope, and said their accommodations were like, oh. They can park it during the day but not overnight. And it's like, but their shifts -- the hours they gave didn't align with the three shifts of overnight care.
And then after all of this started, too, the HOA then started, like, sending notices that they were going to kick him out because all of the sudden he was making noise in the middle of the night. Or he wasn't allowed to run his washer and dryer after 10:00 p.m., and that was happening. I mean, things that weren't even happening.
But, like, clear retaliation.
And so after they refused for the reasonable accommodations, it came to us, because at this point they were like, well, we're going to escalate this and claim that we need damages.
We're going to threaten litigation, thinking, oh, that should do it. Didn't even send it to an attorney. They were just kind of like, yeah, yeah. We're going to get an attorney involved.
And weeks would go by and we'd send another letter. So finally we were like, file the lawsuit!
(Laughter)
And of course, immediately, an attorney called.
And the first guy was like, I'm not even representing them yet formally -- because we sued the HOA members in their individual capacities on top of the organization. Because it was like a very clear, like, discriminatory -- there was animus there.
And the first attorney was like, yeah, we're going to settle this, right? And this is very -- yeah, yeah. We've been saying this, yes, that's very obvious.
But they ended up not hiring him, and brought this other firm in, and it was back and forth. We ended up settling. But, you know, a lot of the comments -- I've dealt with some attorneys, especially because it's often property management companies have attorneys that deal with transactional real estate and not so much Fair Housing Act.
And really, they're open to being educated. Like, this is illegal because of this. Oh, okay, let me talk to my client. This guy was going, well, can't you drop the claims against the individuals?
Why wouldn't you just do that?
Well, because first of all, then we have --
>> No leverage?
LAUREN DEMARTINO: All I need is one person to say, we're not the ones who made the decisions, they did. And if that happens, are you telling me there's not one email or text that says anything with animus involved?
And he's like, yeah, good point.
(Laughter)
Like, he knew. He knew how difficult they were.
And it was just like pulling teeth to get even the settlement. Because it was just, they were vindictive. And eventually -- and the family didn't even want money. So we got, at that point, you know, attorneys' fees covered.
And we got injunctive relief and we even got a little additional -- they also wanted a key thing outside, you know, like, they're like, no, no lockboxes. We're like, we'll put it in one of those little rock things, you won't even know.
So we were able to work some things into it. But because of the feelings, all of the emotions of the HOA, it was like --
>> What was the actual feeling? They didn't like the access vehicle?
LAUREN DEMARTINO: They didn't like -- yeah. They didn't like the way it looked. They said it was putting, like, making it harder for landscapes to cut the grass or something.
I never got to the bottom of it.
But at that point, it just became, like, they didn't like that there was pushback. Because the mom would show up to HOA meetings and be like "I'm having this issue", and then it made them look bad.
So I really think it was originally because they didn't like the way it looked, and they also felt like they really didn't want somebody with a disability in the community.
So yeah. It's hard to imagine their exact justifications, but that never quite came out.
Another HOA case that I dealt with, and this didn't require litigation, but it was a house in an HOA that had land, you know, lots of trees.
And the -- it was a husband and a wife, and the wife developed a disability and needed a service dog.
And then they wanted to fence in their yard because it just made sense, it was like not safe for her to be going out in the winter, they needed to train the dog, and so on and so forth. So they put in a request for a reasonable accommodation for the HOA to fence off this -- and not even to go as far back as they maybe would have imagined their yard went, but just really close.
And they threw a fit, did not want the fence there, because apparently -- and this was interesting and why I said 3615 comes in.
MICHAEL ALLEN: You should speak in English about 3615.
LAUREN DEMARTINO: Yes, yes, yes.
So the background, though, is -- I mean, for the HOA, the argument was that it was a common element. So for HOAs, very often, you have your own property.
There's like three different types of property, right? It's like the personal property, the common elements. And then like the shared -- the more, you know, if you walk into the club house. It's like everyone can walk in.
Whereas common elements are technically owned by everyone in the HOA and could be accessed even though it's on your back porch. And they were saying this was a common element, so that it, you know -- so all these arguments were coming up. They were saying, well, if you have a fence, you have to have a gate so everyone can walk in because it's a common element.
There were other fences already on other properties, for not accommodation reasons.
So the 3615 states that any law of a state, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice shall, to that extent, be invalid.
So the attorney in this case was quite reasonable. And, you know, was open to a dialogue, and his hard line was just, like, look. It's in the HOA rules. These are common elements.
And for a second, we were like, oh, yeah. These are common.
Let me look at that HOA thing. I guess that makes sense -- and then I was like, wait a second. Time out!
(Laughter)
It's not legal if it's discriminatory, right? So this is invalid. If this common element law or policy that you have in your agreements makes it so that someone with a disability cannot enjoy their dwelling the same as someone else's, then it's invalid.
And fortunately, he responded pretty well to that. They were able to build the fence.
And then, you know, other people in the HOA would then like walk their dogs in the back, like in this area, before they built the fence, like just to make a point, it seemed.
But they were allowed to do that. There were a lot of feelings with even with our clients too, because these are your neighbors. And you assume that people are going to be understanding. So there's a heightened emotion that comes in.
But that was my first time dealing in 3615, and it's interesting, because I think what gets lost a lot of the times is "but it's our policy". We're like, right... but if it makes it -- if it's discriminatory, it can't be your policy.
And also, it's a reasonable accommodation TO your policy.
LESLIE DICKENSON: Right, to change your policy.
LAUREN DEMARTINO: We're not saying you have to undo it. Exactly.
There was a good case about a parking space that I relied on in that case, and the subdivision HOA stuff was South Carolina housing rights center Los Feliz, was just something you might want to check out if that's of interest.
MICHAEL ALLEN: I think attached to the agenda, which everybody got in virtual form if you did the QR code, there's a resource list that's got some case citations and contacts for Lauren and Leslie and for Lila.
(Laughter)
>> But you never -- I mean, when I work with accommodations, I always say if it's a policy, if it's accommodation, it's not binding... you know, policies are policies, and they can be changed for accommodations.
LAUREN DEMARTINO: You're requesting an accommodation to this policy being applied differently in this situation. I mean, that's the point. It's like, saying this is our policy is not actually a defense.
LESLIE DICKENSON: Right. Well, just think of it in terms of covenants way back in the day, where it was like a Black person can't live in this neighborhood. That was a covenant.
>> Well, that's not enforceable anymore.
LESLIE DICKENSON: Exactly, neither are these --
>> Well, policies are never enforceable.
LESLIE DICKENSON: I was just clarifying that it was similar, it's not enforceable if it violates the FHA.
LAUREN DEMARTINO: Leslie, I think you were going to talk about ESAs.
LESLIE DICKENSON: I will talk briefly about ESAs.
>> Well, let me -- with the -- I guess the ramp would have the same issue that you're talking about. It would have the same kind of stuff that you were talking about.
LAUREN DEMARTINO: Right. You could have a policy against no had, you know -- I don't know, structures.
LESLIE DICKENSON: No changes to the structure.
>> I had that case, and my client had a lift in the back of their house, and wanted to put a ramp in the front.
And the HOA said, well, you already have the lift, so you don't need the ramp.
And they were like, well, what if there's an emergency and we can't get out the back door?
We had to come very close -- we had the lawsuit drafted and had a 48-hour ultimatum, and finally --
>> Well, if the power had gone out, the lift would have been useless.
>> And god forbid someone want to use both entrances to their home.
(Laughter)
>> We've had cases where -- this was not an HOA, but we had a case where there was an individual where they were requesting a ramp in the front of the building and the housing provider said, oh.
But you can exit through the garage of the building. And like to them, it's like, this isn't equal. Everyone else is exiting through the front entrance.
You have a right to both. If you want to exit through the garage, I don't think you should -- that was upsetting to hear.
>> Well, they may have wanted to --
LAUREN DEMARTINO: But it's equal -- I think this is like -- this is what I feel like has to come back up often in these conversations, too, especially with counsel that are not as used to the Fair Housing Act. It's equal -- the ability to equally enjoy my dwelling, the same as these other people who do not have the same disability as me.
And if those people don't have to exit through the garage, then they're not getting equal enjoyment out of your home. I mean, like, that's the standard.
>> And a necessity for an accommodation is it has to provide some benefit to the person's disability.
>> I mean, the class I normally -- I didn't do it this year, but in two previous years, I talked about preparing for emergencies with people with disabilities. They have to be able to access the facility without using power.
LAUREN DEMARTINO: Right.
>> And not giving them the front ramp, and requiring them to use an electric lift, or the garage, because the garage might be flooded, they can't -- so you have to have -- I mean, you also have the issue of, in an emergency. How they're going to get out of the damn place. And it's a problem
And they can't just say that it looks bad. Or they don't like the...
LESLIE DICKENSON: They try it.
And then they get sued.
And then they have to pay lots of money.
(Laughter)
LAUREN DEMARTINO: There's lots of "but if we let him do it, we're going to have to let everyone do it". I'm like, if everyone else need it is for their disability, you're 100% right.
>> Yes. Glad you get it.
(Laughter)
LAUREN DEMARTINO: Yeah, that's the case
But if you haven't had other requests... like, it's -- yeah.
>> You've been lucky
But it may not be that way for long.
LESLIE DICKENSON: I still have landlords who think that the fairness is treating -- that everybody has to be treated the same, no matter how many times you try to explain that that's not how it works.
But...
LAUREN DEMARTINO: That's reverse discrimination... I mean that ironically!
LESLIE DICKENSON: So we often get requests, calls from tenants who they, yes -- let me think for a second.
So okay. We had one who lived in a mobile home park.
And the management wanted -- she had a dog. It was a German shepherd. So the management wanted -- it was for her diabetes.
They would like trigger -- you know, anyway, it doesn't really matter what it was for. So yeah, they were trying to get her -- telling her she had to remove the dog. So that was an example where we wrote the request for reasonable accommodation.
And they, like, had never heard of it or heard of the Fair Housing Act, but it was a mobile home park.
And we had, like, a conference call with them.
And we explained, you know, everything.
And we eventually settled it.
It was basically, she had -- the tenant or the owner of the mobile home had to ensure that she was actually keeping the dog under her control, which is something that, you know, she does have to do.
But that was -- and then we just regularly have -- sort of in the eviction context. Sometimes, what seems to often happen is, somebody has an ESA.
And they have, you know, the letter on their file or whatever, their support from their medical provider --
>> ESA is --
LESLIE DICKENSON: Sorry. Emotional support animal.
And then they get new management. And the new management can't figure any of this out, and starts harassing them and saying, you know, this is a pet, or you need to register -- there are these registries for pets. And ESAs are NOT pets under the Fair Housing Act.
And the HUD -- I don't know if the HUD -- I don't know if it's listed, because part of the resources was incomplete, but there was a HUD --
>> If they were doing diabetes attention, that probably would have been a service animal if they had bothered to go that route.
>> Yeah, that's a task-trained service animal.
>> But that's not a -- that's an ADA definition.
LESLIE DICKENSON: Anyway, it's a HUD notice. FHEO-2020-01.
And that's what gives you lots of information about both service animals and ESAs and, you know, what the rules are, what landlords can ask, what information has to be provided?
What does not have to be provided. It's very -- you know. Very, just, practical and -- so --
MICHAEL ALLEN: Sam, to your point. If you were under the ADA, you wouldn't get the chickens, right?
>> Right.
MICHAEL ALLEN: But under the Fair Housing Act, you could get the chickens.
>> So I occasionally get cases where the landlord will allow ESAs, but then they have, you know, their paperwork.
And I've started to see some where, you know, you fill out the paperwork. And then it includes a release that allows your provider to answer any questions --
LESLIE DICKENSON: About your disability.
>> Yeah. I've pushed back on those a few times, and... I'm not -- well, I had one where I really tried to push back and my client ended up moving, so we didn't end up getting a resolution on it.
LESLIE DICKENSON: All they need to know is they have a disability and need the animal in relation to their disability.
>> Their attorney kept saying, we're ONLY going to ask this. We're not going to ask everything we could!
>> I don't let my physicians be talked to by a third authority. I always say in the letters I send, at the bottom, if you have questions about this, contact my client, and the client will get an answer for. So there's never -- I know -- I don't want doctors to be harassed by third parties.
But I mean, you're saying they do the same thing.
I mean, I get that all the time, and I don't give them that information. I don't let them do it. I gather you don't let them do it either.
>> Yeah.
LESLIE DICKENSON: Yeah, and if you pull up -- if you use this guidance, you can tell them, this is what you're allowed to get.
MICHAEL ALLEN: Also in the materials is the joint statement, the HUD-DOJ joint statement on reasonable accommodation, which has a question about animals, which makes it clear what the process is.
But also in terms of the threshold question of disability and necessity, it says you could even self-certify to that, if it's something that is simple enough, or you wouldn't need an MD. You could have a doctor, therapist, etc.
LESLIE DICKENSON: Yeah.
And if the disability is obvious, they don't get to ask any questions. Can only ask questions if it's not obvious.
>> There's also, yeah. We've had a few cases where some folks will call in and have, like, we'll be going through an eviction proceeding and they'll have, for instance, 9 emotional support cats. It's been found -- I remember from what I reviewed, there is no minimum on the amount of animals you're allowed to have.
MICHAEL ALLEN: Maximum?
(Laughter)
>> Yes. There's no maximum --
>> There's no minimum, either. You don't need them!
>> There's no maximum.
And we've also had cases where folks will say, oh. We're denying you because the animal may destroy the unit. And the answer to that has been, well, you have to prove the animal is destroying the unit.
You can't say it will destroy it before it happens, there has to be proof. I wanted to see if that was still kosher.
MICHAEL ALLEN: I would say, I wouldn't take the 9-cat case.
>> I didn't take the 15-cat case I had recently.
(Laughter)
MICHAEL ALLEN: So theoretically.
>> Well, this was a real scenario. My office, we're not doing the legal representation ourselves. We do a lot of referrals and we struggle to find referrals for a lot of our cases, because either someone has already discussed with, for instance, has gone through like a different institution or has gone through the government for assistance, but there's been a drop in that assistance. Or there's been some loss, or it's not a case that would make money.
So part of my curiosity is, what do you do at that point? Do you just say "good luck"? Because now we have this person and this person's partner who are going through an eviction proceeding because they have emotional support animals that are important to them that they're legally allowed to have.
LESLIE DICKENSON: Did you say legally allowed to have?
>> I would argue if the cats aren't destroying --
LESLIE DICKENSON: Can you refer to NYCHA or Disability Rights or New York or a nonprofit?
>> We take referrals from you, but not the 9 cat case.
(Laughter)
But we have taken -- we had the go out through the garage case.
>> Yes! Yeah.
>> My colleague took that.
>> Leslie Salzman. When you said you worked for -- I was like, I was just emailing Leslie last week.
>> And I had one or two.
LESLIE DICKENSON: I think with the excessive number of any animals, you have to be able to take care of the animals, and theoretically -- and what's the size of the space that all the animals are in?
MICHAEL ALLEN: I think you lose earlier on that. I think you lose on necessity. So yeah. The reasonableness, you would get to if it's too much and you're not, you know, keeping them under control.
But I'm not sure that you win on the need for the second, third, fourth, seventh, and ninth cat necessarily.
>> But it's --
MICHAEL ALLEN: I'm not saying no, but I'm just saying --
>> It's going to be a hard road ahead, but I think you can do it.
MICHAEL ALLEN: I'm kind of hard boiled because almost all the litigation we're doing is fee shifting. We don't hold our hands out to clients. For poor clients, poor individuals, and poor organizations, we can take cases and often do.
But prudentially, it feels like the opportunity cost of doing the 9 cat case is that we can't restore FIT grants or something like that.
LESLIE DICKENSON: Yeah. I wouldn't -- we did have a tenant with three dogs who had a voucher. Anyway, it didn't matter why, but he had letters from three providers for what each dog did to support him for his disabilities.
>> Okay...
LESLIE DICKENSON: So we were okay with it.
LAUREN DEMARTINO: I think there's also a matter of, like, there's no law to say there's a maximum, but maybe it's because people aren't taking on cases like that. Like, there's an opportunity for that case to set really bad precedent, right? Where you can't have three dogs, because a judge said, no, no.
You don't need those. You need one. So sometimes there's no law on something for good reason.
(Laughter)
It's hard. You know, you want to advocate for every person, and I understand that.
But if it's going to harm the greater good, or people's access to do other, you know -- reasonable accommodations.
LESLIE DICKENSON: Michael's point is good. There's not a need. What's the need beyond, say, maybe two?
I have two cats. I need two cats.
>> I don't know. I think it's possible for us to sit here and say whether or not this fictional human needs 9 cats
>> I'm hard boiled about it. In court --
>> I'd happily argue against you.
(Laughter)
>> I see you have a dog. How many cats do you have?
>> One.
>> So you have one cat and one dog.
>> Res ipso loquitur.
LAUREN DEMARTINO: Okay, we have 10 more minutes, I think. We're on to eviction defense. So this is actually very timely.
And, you know, I think Leslie had a few things to talk about. You know, I had some thoughts and some issues I've seen with group homes as well, but -- why don't you kick us off?
LESLIE DICKENSON: Okay. So finally I have real-life cases. No, the other ones were, actually, now that I think of it.
Okay, this was one of my favorite cases.
So it was a couple years ago, Housing Authority of Baltimore City tries to evict a tenant, a mom and her young son, maybe who was 11 or 12. So he had found a BB gun and shot out the window and hit a neighbor in the thigh and her car.
And the mom immediately -- she already knew he had some mental health disabilities and I think maybe she was in the process of getting him connected to therapy.
But, you know, immediately he started going to counseling and went through some, you know, juvenile court thing.
And she, before she contacted us, you know, wrote her request for a reasonable accommodation and, you know, there was a lot of weird procedural stuff that it happened and the housing authority dropped the case.
Then almost, like. An entire year later, they sued her again for the exact same case, because it had been dismissed with -- well, you know, the housing authority never showed up to the last hearing.
The court had dismissed it, but they didn't dismiss it with prejudice. So they brought back the exact same case, which was bizarre.
So in that case, I wrote a reasonable accommodation -- well, I guess I wrote it to the housing authority, but I also used that Bailey case I was talking about earlier. So because they completely -- they violated the Fair Housing Act by the way they responded to her, but they also violated their own policies under the Bailey consent decree, which were, you know, a little bit more extensive.
So in that case, I was able to kind of go through their fair housing -- go through their attorney but also their fair housing.
But I still had to, sort of until the last, ninth hour, convince them to dismiss. I think, you know, we would have won on trial, but they finally agreed to dismiss with prejudice at the sort of last minute.
And so that one was in court.
Oh, let me talk about this. Yeah, this autism spectrum disorder. This is interesting, because -- and by the way, if somebody loses their public housing or their voucher, you know, they're not going to get subsidized housing again.
Maybe not ever, if they were evicted.
But certainly not for over 10 years.
>> So what is this? If they use their what for --
LESLIE DICKENSON: If they get evicted from public housing, or if they get evicted from a place they're renting with a voucher. A subsidy.
We have been having cases -- I had a case a couple years ago where a -- it was the grandmother taking care of her grandson, who has autism, and neighbor below was complaining that he was making noise, or a few, couple kids.
It was actually a really good case because he had this great therapist who would come to the house, and he may not have been making any noise.
But anyway, this was a case where they were not going to renew. So it wasn't even an eviction. They weren't going to renew. So I wrote the letter, reasonable accommodation request, explaining, you know, everything about how this, you know -- oh, yeah. This was during COVID, and the kid was going to start going back to school, and he has this therapist, and blah blah blah.
So they actually agreed to renew the lease.
Well, a couple of years later, like in the last couple years, I haven't had nonrenewals.
I've had two eviction cases where they tried to evict for the same reason, and there's always -- it's always like just this one person in the whole complex that's below them claiming that this child is making noise.
And so even if they're, you know, getting services from Kennedy Krieger or whatever.
So what they usually want is they want to transfer. This is what my, you know, parent wants, you know.
The mother, to transfer to a ground-floor unit.
And that comes back to what you were saying, Michael, about, you know -- I mean, they're more expensive anyway. They're charging.
But what they're doing in terms of transfer is they're pretending that someone's trying to terminate the lease, and they then have to pay that -- a lot of leases now have a two month -- you're allowed to terminate the lease, and you have to pay two months' rent.
So they're pretending a transfer request for reasonable accommodation is a termination, so they have to pay, you know, 4,000 dollars, 3,000 dollars, whatever. Cost-prohibitive.
And so we were getting ready to file a counterclaim in this one -- but then the child ended up going into residential care, so that's kind of moot.
But we're going to be looking at that if anyone is interested in that issue.
Because it's -- and there's -- at least in this area, there's like two very large management companies that definitely do this.
And it's not clear if -- I mean, well, there's a disparate impact even if they're doing it to -- because there was a case -- I actually ended up -- Jane Santoni took it.
But it was where -- they live in an apartment complex.
And the little girl is in a wheelchair. They were on sort of the second floor. The father was carrying her down the steps.
And we were just trying to get them transferred to the ground floor.
And it was a similar situation where, you know, they had to pay, go through the credit check and the whole new -- as though you were a new applicant.
>> I had one week where I had two cases with that.
And then both before we had the client sign our releases to even reach out to the landlord, both landlords had relented. So we ended up not having to do it.
LESLIE DICKENSON: Nice, yeah. So we're going to have to go after these big ones.
>> What was the kid with autism doing?
(Laughter)
>> What kind of damages are y'all getting on discrimination cases --
>> Jumping up and down on the floor?
LAUREN DEMARTINO: Um, it varies. I know one thing Lila planned to talk about is a case -- there was a case in LA -- it was a designated parking spot case, which is what we were just talking about, and only got, like, 3 or 400 dollars in compensatory damages, but they awarded 7 million --?
MICHAEL ALLEN: No, it was the other way around. So there was a doctor in LA who testified that she was basically -- she felt as if she were a prisoner in her own apartment because they wouldn't give her a designated parking space.
And it ended up that it was 7 million in compensatory damages.
LAUREN DEMARTINO: I thought it was 7 million dollars in punitive.
MICHAEL ALLEN: No, I looked it up. So 7 million in compensatory, 4,000 dollars in punitive damages
But there are increasingly cases where juries are awarding punitive damages. We got one in a group home case in Connecticut. Six men with mental health disabilities who were appropriately being placed in the community couldn't live there because this town ran them out of town and they were back in institutional settings.
And the group, Gilead Community Services, got a modest amount of compensatory damages based on they got this house and had to sell this house because they couldn't run it. So I think it was 181,000 dollars in compensatory, and the jury awarded 5 million dollars in punitive against the municipality, because the treatment was so bad, and it got remitted by the court --
>> So it's not ridiculous that I just sent a 60,000 dollar demand letter is what I'm hearing.
(Laughter)
MICHAEL ALLEN: I think the more we can share information about whatever monetary impact there is on defendants in cases like this, the more deterrence we're going to be able to create.
>> At the Fair Housing Justice Center, we had a design and construction case -- it was two separate ones, because they fucked over the first settlement -- excuse my language -- and didn't follow the injunctive relief or remediations, and in all we got I think 4 million dollars from them.
And all that's public, so if you want to go on our website and scroll through. We have race discrimination, source of income, and larger disability.
>> Interesting. Same with an elderly disabled woman that I sent a very angry demand letter about for 60,000 dollars. So I was curious.
LESLIE DICKENSON: What are the facts?
>> She has been living in this building for 60 years. She lost both of her legs to diabetes four years ago and hasn't been able to leave her apartment independently since, for four years, because she can't -- her apartment is behind a fire door.
And she can't open the fire door, and also the front door to the building. I couldn't open to get in or out with a power chair.
And she uses a manual chair, and she's 85.
And the management company has been giving her the runaround -- oh, she tells me this. I'm like, is anything else going on?
And she's like, also, I haven't been able to use my own bathroom in four years. I bird bath and use a bedside commode.
And I felt incandescent range.
LAUREN DEMARTINO: 60 doesn't sound like --
(Laughter)
LESLIE DICKENSON: I know, it's a little low!
LAUREN DEMARTINO: I mean, pre-litigation.
>> I mean, it's a demand letter. If y'all want to, now, we can talk about this now, but my boss is letting me take it to federal court if I want to, which is exciting.
LAUREN DEMARTINO: Yeah. I think, you know, what's been nice about being a fair housing lawyer and doing the work in the disability rights community is, like, the conversations, like the damages, issues. We're not there yet, right?
Obviously there's a movement towards chipping away at like emotional distress damages, but we do have more flexibility under the Fair Housing Act.
>> And the New York City human rights law is fantastic.
>> Have you guys had any issues with, speaking of damages or even standing, we've had some alarms rung with frustration of mission --
MICHAEL ALLEN: Yes.
>> As a legal plaintiff --
LAUREN DEMARTINO: But Arizona, the 9th Circuit case that was really bad on that just got vacated two days ago.
MICHAEL ALLEN: But that doesn't mean -- we're telling all of our clients that the old diversion and frustration model doesn't work for groups like private fair housing groups, and that you really need to shore up the extent to which your core mission is being affected, and not simply because you investigated or did some training.
So I think we need to be strategic about what we're bringing --
LESLIE DICKENSON: Can you clarify --
>> What's the issue?
MICHAEL ALLEN: The Supreme Court case, FDA, questions whether the broad holding in Havens is fully applicable. So the fair housing community, the nonprofits that do all of the FIP things, the NAFA members who do this work, we're cautioning them all now that a conventional diversion and frustration argument for your organizational standing needs to be shored up in a significant way by some actual program thing that you're doing that's harmed in a very concrete way. I mean, there are other arguments for what plaintiffs could be, and there could be some -- do associational standing
>> Yeah, associational standings for P&As if your circuit allows those.
MICHAEL ALLEN: Yeah, but it's hazardous for conventional private fair housing groups these days, and we want to make sure we don't give any bad circuit the opportunity to wipe this out for everyone else.
LAUREN DEMARTINO: We did some briefing on this.
>> I still don't know what you're talking about.
LAUREN DEMARTINO: Fair housing organizations can bring a suit, a fair housing suit, and the way that they establish standing in the court were to say that our mission was frustrated by the defendant's discrimination. Meaning the work that we do was harmed.
>> Oh, this was a standing argument.
Okay, that makes a whole lot more sense.
LAUREN DEMARTINO: Yes.
But it also is the baseline or the qualification for getting damages for those same categories.
>> And you do not want to lose, if one place loses their standing, it could be everybody --
LAUREN DEMARTINO: We're all screwed.
>> -- lose their standing. I got it now.
MICHAEL ALLEN: Sorry if we're speaking insider.
LAUREN DEMARTINO: We're speaking in code.
>> It's a really interesting setup because the fair housing organizations do their own testing and investigations and collect evidence and have, like, secret recording equipment where they do things that I won't go into detail with because I'm not allowed!!!
(Laughter)
And then we do work to get this done. So our mission would be frustrated if, for instance, in ongoing litigation, I can't have as much of the discussions I have with the people in my community to know what their rights are. There's a lot of muddling with that.
MICHAEL ALLEN: The other argument is that's a self-inflicted injury. You've spent that money, now you're claiming that because you've spent that money you should be able to sue on it. That's completely circular.
We're worried this is where it's going.
LAUREN DEMARTINO: It is. These are the arguments that are being made. No, it's concerning, and it is limiting.
I think that -- the reason I was excited about the 9th Circuit is because I think that there was other courts that have been like, yeah, things change and limit a bit, but the 9th Circuit kind of went off the deep end with it.
And it was -- and then, like, said all these other cases are overruled.
So that being vacated to be heard en banc.
LESLIE DICKENSON: What's the case?
LAUREN DEMARTINO: Arizona Alliance for Retired Citizens, maybe, versus Mayes.
So the thing is, there hadn't been many fair housing organizations -- a lot of this stuff, like the FDA case was an organization, an issue advocacy organization that was founded specifically to litigate reproductive rights issues. So this, you know, extending it to fair housing organizations is like the biggest step.
Because Havens was a fair housing organization. So we're just like aligning things as closely as we can with Havens, with, you know, the home -- like, what the plaintiff specifically -- went back and looked at the briefs that were filed in this case. Like, these arguments were rejected in Havens.
>> I think it's supposed to be time.
LAUREN DEMARTINO: Sorry, everyone --
MICHAEL ALLEN: If anyone wants to talk, I'm happy to talk. I have cards if anyone wants contact information. Let's go to the reception!