Fair Housing Act Claim Analysis (Community Association Quarterly)

 

In Florida, fair housing litigation typically includes just a few distinct types of claims. Claims often arise from alleged discrimination in the sale or rental of housing. Florida Statutes § 760.23 states, “It is unlawful to refuse to sell or rent … or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.” Examples of this may include a condominium board’s refusal to approve an owner’s lease to a family with children based on an outdated rule prohibiting children in the building. Claims will also arise from discrimination in the conditions or privileges of sale or rental. Florida Statutes § 760.23 prohibits discrimination in the “conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, national origin, sex, handicap, familial status, or religion.” For example, a property manager may selectively enforce the community’s parking rules against a Persian-American family based on bias against their national origin.

In addition, Florida fair housing litigation often includes claims arising from a housing provider’s alleged refusal to make accommodations in rules or services for handicapped persons. Discrimination includes any “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.”1 For example, a condominium board may refuse to give an exception to its no-pet rule to disabled persons needing service or emotional support animals.

Each of these types of claims implicates both the Federal and Florida Fair Housing Acts. Florida courts construing the Florida Fair Housing Act have stated that the Federal and Florida Fair Housing Acts are “substantively identical.”2 Federal court discussions of the Federal Fair Housing Act are persuasive to Florida courts and their construction of the Florida Fair Housing Act. Accordingly, the Federal and Florida Fair Housing Acts are discussed in conjunction below.

Standing to Bring a Claim

Standing is simple to establish under the Fair Housing Act. Any person may sue for an alleged violation of the Fair Housing Act if they claim to have been injured by a discriminatory housing practice, or believe they will be injured by a discriminatory housing practice that is about to occur. The plaintiff need not belong to a protected class and does not have to show they were the target of the discriminatory housing practice.

The Fair Housing Act describes any person who claims to have been injured by a discriminatory housing practice as an “aggrieved person.” “Aggrieved person” is given a broad definition by the Fair Housing Act. Standing under the Act is as expansive as the Constitution’s minimum case or controversy requirements.3 That is to say, the plaintiff need only show they personally suffered some actual or threatened injury as a result of the defendant’s alleged unlawful conduct.4

For instance, the court in Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Association, Inc. found that a religious group had standing to sue a homeowners’ association for the right to use its common areas for worship services even though the religious group was not a member of the association and not entitled to use the community’s common areas at all. The court pointed to the religious group’s allegations that the homeowners’ association denied the religious group the right to hold meetings solely based upon the religious aspects of its meetings, but that the Association permitted other groups to meet freely.5 This provided the court with enough facts to determine that the plaintiff had standing to sue under the Act.

Discrimination in Sale or Rental

Florida courts have analogized Fair Housing Act claims to Title VII employment discrimination claims. In so doing, courts apply an analysis to Fair Housing Act claims that is similar to that employed in Title VII claims.6 As such, a plaintiff may establish a Fair Housing Act violation by showing either (1) the defendant was motivated by intent to discriminate against the plaintiff, or (2) the defendant’s otherwise neutral action has a discriminatory effect (“disparate impact”).7

Intentional Discrimination

If discriminatory intent is claimed, a plaintiff must show that the defendant intended or was motivated to discriminate against persons who are members of a protected class.8 Although increasingly rare, discriminatory intent can be proven by direct evidence, such as a statement of the defendant that demonstrates animus toward a protected class. More commonly, though, and in the absence of direct evidence, the courts utilize a four factor test to evaluate whether circumstantial evidence shows discriminatory intent. The courts consider: (1) the discriminatory or segregative effect of the allegedly discriminatory housing practice (“disparate impact”); (2) the historical background of the surrounding circumstances, including prior exclusionary behaviors; (3) the sequence of events leading up to the challenged actions; and (4) whether there were any departures from standard practices.9

In cases of alleged circumstantial evidence of intentional discrimination, Fair Housing Act claims are subject to the McDonnell Douglas Corp. v. Green burden-shifting analysis.10 The plaintiff has the initial burden of establishing a prima facie case. If the burden is met, the plaintiff is entitled to a rebuttable presumption that the defendant engaged in unlawful discrimination.11 The burden then shifts to the defendant to establish a legitimate non-discriminatory reason for taking the action. If the defendant produces a legitimate non-discriminatory reason, then the burden returns to the plaintiff to establish that the defendant’s reason is merely a pretext for discrimination.12 A plaintiff may demonstrate that the defendant’s reason is merely a pretext by demonstrating inconsistencies and contradictions in defendant’s position and by putting forth evidence that animus toward the protected class motivated the defendant’s actions.13

Disparate Impact

Disparate impact analysis is applied to a facially neutral policy or practice to determine whether the policy or practice has a segregative effect or “makes housing options significantly more restrictive for members of a protected group than for persons outside that group.”14 Courts have stated that when a facially neutral housing practice has a disparate impact on a protected group, it produces two kinds of discriminatory effects: (1) the facially neutral housing practice has an adverse impact on the particular protected group and (2) there is harm to the community generally in the perpetuation of segregation.15

Typically, discriminatory effect in disparate impact claims is demonstrated by statistics.16 In analyzing these cases, courts favor proportional statistics over a simple examination of absolute numbers. For instance, in the case of Huntington Branch, N.A.A.C.P. v. Town of Huntington,17 the Court examined census figures in evaluating the discriminatory effect of a suburb’s zoning regulation, which restricted private multi-family housing projects to a largely minority “urban renewal area.”

In that case, the court was asked to determine whether the Town Board’s refusal to amend the regulation to allow construction of subsidized housing in a white neighborhood violated the Fair Housing Act. At the time, Huntington was comprised of approximately 200,000 people. The court examined census figures from 1980, which suggested that 95% of Huntington’s residents were white. The regulation in question only permitted private construction of multi-family housing in the Town’s “urban renewal area,” where 52% of the residents were minorities.

While the lower court recognized that a disproportionately large percentage of households using subsidized rental units are minorities, the court erroneously focused on the larger absolute number of poor whites in the community (22,160) versus poor minorities (3,671). In so doing, the lower court concluded that if the housing project were constructed in the “urban renewal area,” the tenants “might not come disproportionately from minority groups.” In wrongly focusing on the greater absolute number of poor whites compared with indigent minorities, the lower court underestimated the disproportionate impact of the zoning regulation. The court failed to recognize that this regulation impeded integration by restricting private construction of low-income housing needed disproportionately by minorities to an area already 52% minority.18

Reasonable Accommodation

Courts utilize a wholly different approach to reasonable accommodation claims. A “reasonable accommodation” claim will arise if a housing provider refuses to make a change or exception to a rule, practice, or service that may be necessary for a disabled person to have an equal opportunity to use and enjoy a dwelling. This includes the disabled person’s use and enjoyment of public and common areas. In order to prevail on a Fair Housing Act reasonable accommodation claim, a plaintiff must establish that (1) he is disabled within the meaning of the Act, (2) he requested a reasonable accommodation, (3) such accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling, and (4) defendants refused to make the requested accommodation.19

A person is handicapped for purposes of the Act if they suffer from a “physical or mental impairment which substantially limits one or more of such person’s major life activities,” if they have “a record of having such an impairment,” or if they are “regarded as having such an impairment.”20 Major life activities include functions such as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”21 “[A]n individual faces a ‘substantial limitation’ when he is (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”22 Sex offenders are not covered by the Act.23 In addition, “handicap” is not defined so broadly to include persons currently using or addicted to a controlled substance;24 however the Act does protect persons recovering from substance abuse.25

A plaintiff must actually request an accommodation and be refused in order to bring a reasonable accommodation claim under the Act.26 With that being said, the request need not be in writing.27 Whether a requested accommodation is required by law is “highly fact-specific, requiring case-by-case determination.”28 No burden-shifting analysis is employed in these cases. The plaintiff bears the burden at all times of proving that a proposed accommodation is reasonable.29

Necessity and Reasonableness

The Fair Housing Act only prohibits denial of reasonable accommodations that are necessary to the plaintiff’s use and enjoyment of the property. To demonstrate that the requested accommodation is necessary the disabled person must show that the desired accommodation will ameliorate the effects of the disability.30 There must be a direct link between the requested accommodation and the equal opportunity to be provided to the handicapped person.31 Reasonable accommodations are meant to address needs, not the personal preferences of disabled persons. It is insufficient to show that a refused accommodation is simply convenient or desired; rather, it must be necessary.32 The Act only ensures that the handicapped person is provided an equal opportunity to use and enjoy a dwelling, not a better opportunity than members of the surrounding community.33

For instance, the court in Bryant Woods Inn, Inc. v. Howard County, Md. examined an alleged failure on the part of the Planning Board of Howard County, Maryland to waive zoning regulations to reasonably accommodate the expansion of a group home for handicapped persons.34 The group home, Bryant Woods Inn, wanted to expand from eight residents to 15 residents. The relevant zoning regulation required the group home to provide at least eight parking spaces for the 15 anticipated residents. The Planning Board denied the request for a variance because it found that the group home’s proposed parking plan only accommodated up to six vehicles. It found that the group home’s existing use generated parking congestion, which would only be exacerbated by the proposed expansion. The Planning Board also found that denial of the variance would not limit housing opportunities for the disabled, as Howard County had over 30 assisted-living facilities providing housing opportunities for the elderly and disabled. The Planning Board also concluded that eight residents is a reasonable number for the economic viability of the group home.

In examining the fair housing allegations, the court found that the group home failed to prove the necessity of their requested accommodation. The zoning regulation does not prohibit group housing for individuals with handicaps. As such, the requested zoning variance was not aimed at permitting handicapped persons to live in group homes, but at expanding the group home size from eight to 15 persons. Bryant Woods Inn introduced no evidence that group homes are not therapeutically or financially viable with only eight residents. Thus, the court found nothing to suggest that expansion of the group home from eight to 15 residents is necessary to accommodate individuals with handicaps. The court found that the requested accommodation did not ameliorate the effects of the residents’ disabilities, and only had the effect of benefiting the group home financially. The court thus concluded that requiring Howard County to grant the zoning variance would provide an advantage to Bryant Woods Inn that is not enjoyed by group homes that do not serve disabled persons-something not required by the Fair Housing Act.35

A request for an accommodation may also be denied if providing the accommodation is not reasonable. An accommodation is not reasonable if it imposes undue financial and administrative burdens on the housing provider or it if would fundamentally alter the nature of their operations.36 Whether the requested accommodation would impose an undue financial and administrative burden is determined on a case-by-case basis. Courts consider several factors, such as cost, the financial resources of the provider, the benefits that the accommodation would provide to the disabled person, and the availability of less-costly alternative accommodations that would ameliorate the effects of the disability.37 If an alternative accommodation would effectively meet the disability-related needs and is reasonable, the provider must grant it.

However, the financial burden must be significant before the court will determine that it impacts the reasonableness of the proposed accommodation. The court will not be concerned if the cost is only minor and the accommodation is financially feasible for the defendant. In Davis v. Lane Management, LLC, for instance, the Court held the defendant violated the Fair Housing Act in refusing to make elevator repairs even though the defendant considered the repairs cost prohibitive.38

Relief from Discriminatory Housing Practice

Both the Federal and Florida Fair Housing Acts allow courts to impose actual damages and injunctions on defendants found liable for discrimination in housing.39 This may include damages for humiliation and embarrassment suffered by the plaintiff.40 Punitive damages may also be granted when the defendant “exhibited a callous indifference to the federally protected rights of the plaintiff.”41 If the matter is instituted by the Florida Commission on Human Relations or the United States Department of Housing and Urban Development in an administrative hearing, the judge may impose maximum civil penalties as follows:

1. Up to $10,000, if the respondent has not previously been found guilty of a violation.

2. Up to $25,000, if the respondent has been found guilty of one prior violation within the preceding 5 years.

3. Up to $50,000, if the respondent has been found guilty of two or more violations within the preceding 7 years.42

The Federal Fair Housing Act makes attorney’s fees available to the “prevailing party,”43 but case law construing the Act does not allow for fees to the plaintiff and the defendant on an equal basis. Prevailing defendants are treated differently from prevailing plaintiffs and are only entitled to receive fees “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.”44 The Florida Fair Housing Act is much more clear and states, “If the court finds that a discriminatory housing practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including injunctive and other equitable relief, actual and punitive damages, and reasonable attorney’s fees and costs.”45 There is no language in the Florida Act suggesting that fees may be available to a prevailing defendant.

(Endnotes)

1 Fla. Stat. § 760.23(9)(b)

2 Loren v. Sasser, 309 F.3d 1296, 1300 n.9 (11th Cir.2002); Dornbach v. Holley, 854 So.2d 211, 213 (Fla. 2d DCA 2002) (stating that “[i]n considering the application of the Florida Fair Housing Act …. the application of the FHAA by the federal courts … [is] instructive and persuasive.”).

3 Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, 1226-27 (S.D. Fla. 2005).

4 Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979).

5 Savanna Club Worship Service, Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, (S.D. Fla. 2005).

6 Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997).

7 Larkin v. State of Mich. Dept. of Soc. Services, 89 F.3d 285, 289 (6th Cir. 1996).

8 Reese v. Miami-Dade County, 242 F. Supp. 2d 1292, 1301 (S.D. Fla. 2002) aff’d, 77 F. App’x 506 (11th Cir. 2003) for text, see 02-16855, 2003 WL 22025458 (11th Cir. July 14, 2003).

9 Bonasera v. City of Norcross, 342 F. App’x 581, 585 (11th Cir. 2009); (adopting the multi-factor test set forth in United States v. Hous. Auth. of City of Chickasaw, 504 F. Supp. 716, 727 (S.D. Ala. 1980)).

10 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

11 Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 871 (11th Cir. 1990).

12 Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners’ Ass’n, Inc., 456 F. Supp. 2d 1223, 1231-32 (S.D. Fla. 2005).

13 Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 871 (11th Cir. 1990).

14 Bonasera v. City of Norcross, 342 F. App’x 581, 585 (11th Cir. 2009)(citing Housing Investors, Inc. v. City of Clanton, Ala., 68 F. Supp. 2d 1287, 1298 (M.D. Ala. 1999)).

15 Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977).

16 Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276, 1286 (11th Cir. 2006).

17 Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 928 (2d Cir. 1988) aff’d in part sub nom. Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15 (1988).

18 Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 938 (2d Cir. 1988) aff’d in part sub nom. Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15 (1988).

19 Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218 (11th Cir. 2008)

20 42 U.S.C. § 3602(h)

21 24 C.F.R. § 100.201(b)

22 Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997).

23 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 4 (May 17, 2004).

24 United States v. Southern Management Corp., 955 F.2d 914, 922 (4th Cir. 1992).

25 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 4 (May 17, 2004).

26 Schwarz v. City of Treasure Island, 544 F.3d 1201, 1219 (11th Cir. 2008).

27 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 10 (May 17, 2004).

28 United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994).

29 Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002).

30 Essling’s Homes Plus, Inc., a Minn. Corp. v. City of St. Paul, a Minn. Corp., 356 F. Supp. 2d 971, 980 (D. Minn. 2004).

31 In re Kenna Homes Co-op. Corp., 557 S.E.2d 787, 794 (2001).

32 Bachman v. Swan Harbour Ass’n, 653 N.W.2d 415, 429 (2002).

33 Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008).

34 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir. 1997).

35 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 605 (4th Cir. 1997).

36 Bachman v. Swan Harbour Ass’n, 420, 653 N.W.2d 415, 430 (2002).

37 Joint Statement of the Department of Housing and Urban Development and the Department of Justice Reasonable Accommodations Under the Fair Housing Act 7 (May 17, 2004).

38 Davis v. Lane Management, LLC, 524 F. Supp. 2d 1375, 1378 (S.D. Fla. 2007).

39 42 U.S.C. § 3613(c); Fla. Stat. § 760.35(2)

40 Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990).

41 Davis v. Lane Mgmt., LLC, 524 F. Supp. 2d 1375, 1377 (S.D. Fla. 2007).

42 42 U.S.C. § 3612(g)(3); Fla. Stat. § 760.34(7)

43 42 U.S.C. § 3613(c)(2)

44 Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir. 1997)(quoting Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421 (1978)).

45 Fla. Stat. § 760.35(2)