A Citizen, Pro Se

ICRC’s ‘Defense by Proxy’ of Landlord’s Acts

This page contains the first four pages of the seven-page attachment to my second Amended Complaint (August 8, 2007).
**********

Beginning with his first phone contact with me on May 1, 2007, the ICRC investigator repeatedly peppered me with a barrage of spurious hypothetical ‘defenses,’ arguing that my case wasn’t valid because the Landlord had a ‘right’ to protect himself from liability and damages. (Intriguingly, HUD/FHEO Region V (Chicago) Section 504 official Maurice J. McGough made many of the same arguments — often using the same wording — when I told him in early December 2007 about ICRC’s exclusion of a substantial body of evidence.)

It’s worth pointing out that, in regard to ‘reasonable accommodations’ (like a service animal), the Respondent has to prove — that is, offer solid empirical evidence, not just hypthetical conjecture — that there is a compelling business reason of either inordinate expense or extreme administrative difficulty preventing the accommodation. The HUD Model Lease used by my HUD Project-based Section 8 Landlord (as required by HUD) includes ‘service animals as a reasonable accommodation’ as a standard lease item, so no ‘business reason’ argument would stand.

When I wrote my Second Amended Complaint, I wasn’t aware of the necessity of proving a ‘compelling business reason’ as a defense, or I would have simply written about that. What I did instead was to make a list of all the arguments raised by the ICRC investigator during the previous three months, and rebut them by citing the law and other authoritative documents. This document was, of course, excluded from the case record and the TEAPOTS database by ICRC.

The arguments raised by the ICRC investigator should never have come up during the investigation process. And if they had been raised during the ajudication process, an Administrative Law Judge would have found them ‘of no merit’. (See County Manor letter, Aug 22).

Of course, there’s another thing I didn’t know when I wrote this, and didn’t find out until I received a copy of my case record in November 2007, so I could prepare for the appeal. The Respondent (Landlord) ‘failed to defend’ — didn’t submit any defense in the required form. According to Federal law, when a complaint is filed and referred to a FHAP agency (like ICRC), the agency must notify the Respondent by letter. The Respondent received this letter (which is produced automatically by the TEAPOTS database). The letter instructed the Respondent to submit any defense acceptable to a court as a signed statement including legally-prescribed language swearing under penalty of perjury that the statement is accurate. Well, guess what? No such document exists in the case file — and I wrote ICRC Staff Attorney Michael Healy twice to make sure that it hadn’t simply been excluded from the hardcopy of my file. So the ICRC gave the Respondent a ‘walk’ on the Federal requirement of a signed, sworn statement, and let the Investigator use nothing more than a phone call as the basis for ‘Respondent’s Defense’ as entered into TEAPOTS and the Final Investigative Report.

So, the Respondent is relieved of a documentary obligation established by Federal law, while the Complainant has to listen and respond to several month’s worth of legally-indefensible arguments raised by the ICRC investigator. And then the Complainant’s responses are excluded from the case record. Boy, there’s justice for ya!

Prepared by ‘Anne E. Citizen’ Aug 7 2007

Amended Complaint — Responses to Questions Raised During ICRC Investigation
RE: ICRC Case HOha07040187
HUD Case 05-07-077608
Section 504 Case 05-07-0106-4

During the investigation period for this case, the ICRC investigator raised many hypothetical questions during phone conversations. Because similar questions may arise in other reviewers’ minds (although these questions might more appropriately be raised during adjudication as part of the Respondent’s defense) it seems prudent to respond to the issues raised during the investigation. In my responses, I have relied heavily on the ‘Final Rule’ (54 FR 3232 – Implementation of the Fair Housing Amendments Act of 1988), which offers clarification of the intent and purpose of Title 8 of the Fair Housing Act.

Certain arguments, such as those relating to damages and liability, have been brought forward in such a way as to suggest that Indiana law supports a Landlord’s property rights at the expense of a disabled person’s civil rights. However, the Final Rule reminds us that to maintain its certification as a ‘jurisdiction with substantially equivalent laws’, ICRC “must administer laws which prohibit all discriminatory housing practices which are prohibited by the Act and must include as protected classes all classes protected by the Act” (24 CFR 84 Part 115). Section 816 of the Fair Housing Act [42 USC 3615] states plainly: “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 under this subchapter shall to that extent be invalid.”

Landlord’s need to protect from damage to property
My June 15 memo provides authoritative references showing that the terms of the HUD model lease offer the Landlord sufficient protection from costs related to property damage. The Final Rule discusses potential damage caused by an auxiliary medical aid (a wheelchair, for example) and concludes that no additional protection for the Landlord is warranted. Service animals, in addition to being a type of reasonable accommodation, are considered auxiliary medical aids, like wheelchairs. Holding disabled tenants responsible for damage caused by an auxiliary medical aid (whether wheelchair or service animal) would be considered a discriminatory housing practice.

From Final Rule: Section 100.65 Discrimination in terms, conditions and privileges and in services and facilities.
Section 100.65 provides that differences in the treatment of persons in connection with the provision of services and facilities or in the terms or conditions relating to the sale or rental of a dwelling because of race, color, religion, sex, handicap, familial status, or national origin constitute discriminatory housing practices.

A large number of comments received from persons owning or managing rental housing and associations representing such persons disagreed with the Department’s interpretation of the Fair Housing Act as precluding different security deposit requirements for persons with handicaps and families with children. These comments generally took the position that mobility impaired persons in wheelchairs and small children would cause more damage to the interior of dwellings, thus justifying the need for additional security to cover the exposure of the owner or manager to make needed repairs when units occupied by such persons are vacated. Since the Department has determined that in enacting the Fair Housing Act, Congress sought to provide the same protections to persons with handicaps and families with children as were made available to other classes of protected persons, no change in the illustration in § 100.65(a)(1) has been made.

Landlord’s need for protection from liability
The Fair Housing Act leaves liability issues to State law. See also the discussion above under ‘damages’.

From Final Rule, under Heading ‘Increased Liability’ — “a property owner does not assume a greater degree of vicarious liability as a result of injuries that may be caused by the tenants” also “Congress does not intend to alter vicarious or secondary State tort law through the provisions of this bill. There is no objective evidence to link concerns about increased liability with any of the protected classes, and none should be assumed. Thus, we are stating, as a matter of clarification, that there is no relationship between this bill and existing State vicarious and secondary liability tort laws.”

Landlord’s need to protect from health/safety risks
Service animals, like all animals, are covered by State and Local health and safety laws. Any citizen can enforce animal control laws simply by making a phone call. It is not necessary to impose a additional contracts on disabled tenants in order to enforce health and safety laws.

The Final Rule considers the presumption that disabled people “pose a greater threat to the health and safety of others” is an “unwarranted presumption” that runs “counter to the intent and purpose” of Title 8.

From Final Rule: Section 100.202 General prohibitions against discrimination because of handicap.
The Department also does not believe that it would be appropriate to revise § 100.202 expressly to permit inquiries into “antisocial” behavior or “tendencies.” Language such as this might well be seen as creating or permitting a presumption that individuals with handicaps generally pose a greater threat to the health or safety of others than do individuals without handicaps. Such a presumption is unwarranted and would run counter to the intent and purpose of the Act. House Report at 28. Likewise, a regulatory provision stating that housing provides [sic] shall not be liable for personal injury or property damages caused by reason of another person’s handicap could also be seen as creating a presumption that persons with handicaps are more likely to pose a threat to persons or property that [sic] are other persons and would run counter to the intent of the Act, since Congress made no such presumption. For example, the House Committee on the Judiciary stated that it did not “foresee that the tenancy of any individual with handicaps would pose any risk, much less a significant risk, to the health or safety of others by the status of being handicapped . . ..”

Does Landlord have intent to discriminate?
Actions, not the question of intent, are considered by the law.

From Final Rule, under Heading ‘Standard for Proving a Violation’ — “these regulations are not designed to resolve the question of whether intent is or is not required to show a violation”

Do Landlord’s actions constitute discrimination under law?
This question can only be decided in a court of law or by HUD adjudication. As an “aggrieved person” I believe that I have been injured and/or will be injured by actions which fit into the following categories or ‘discriminatory housing practices’ as defined by Federal and State law:

1. Discriminate, make unavailable or otherwise deny housing due to handicap (FHA 804f1A, 42 USC 3604f2, IC 22-9.5-5-1(a), IC 22-9.5-5-5(a))
2. Discriminate in terms and conditions of rental due to handicap (FHA 804f2A, 42 USC 3604f2A, IC 22-9.5-5-1(b), IC 22-9.5-5-5(b))
3. Refuse Reasonable Accommodation (Service Animal) due to handicap (FHA 804f3B, 42 USC 3604f3B, IC 22-9.5-5-5(c)(2))
4. Coerce, threaten, interfere with the exercise and enjoyment of the right to a Reasonable Accommodation (Service Animal) (FHA 818, 42 USC 3617, IC 22-9.5-5-8 )
5. Demonstrate a pattern and practice of resistance to the full enjoyment of rights protected by FHA Title 8 (FHA 814, 42 USC 3614, IC 22-9.5-8.1-1)

Respondent has not supplied witnesses or evidence other than Landlord’s documents
In this case, the Landlord’s documents are the evidence. The three Service Animal contracts (Policy, Agreement, and Permits) are the discriminatory terms and conditions imposed on tenants who have a disability that requires a service animal. Landlord ‘requires’ two contracts in addition to the lease for the sub-group of disabled tenants who require a reasonable accommodation (service animal). Landlord’s March 19 letter and June 7 letter show the threat of denial of housing as a way to coerce submission to those terms and conditions; the June 7 letter shows ‘pattern and practice’.

When the question of witnesses and evidence was raised, I pointed out that ICRC had authority to subpoena the Landlord’s files on disabled tenants, and to subpoena information from Gena Tursi, the Landlord’s HUD Program Administrator (Indianapolis office), who has been asked to review these contracts. The Final Rule makes it clear that, as Complainant, I am not allowed to do discovery because, by filing a complaint, I have placed the conduct of the investigation in HUD’s (ICRC’s) hands:

[From Final Rule – 24 CFR] Section 103.215(b) states that the Assistant Secretary and the respondent may conduct discovery in aid of the investigation by the same methods and to the same extent that parties may conduct discovery in an administrative hearing under Part 104, except that the Assistant Secretary would have the power to issue subpoenas as described in § 104.590 in support of the investigation or at the request of the respondent.

[…]

Another commenter argued that since HUD should be neutral with respect to the parties during the investigation, there is no reason to deny the aggrieved person the right to conduct discovery while providing this same right to the respondent. While HUD is neutral with respect to the parties, the parties’ positions during the investigation are not equal. The respondent is the focus of an investigation aimed at determining whether he or she has committed a discriminatory housing practice and, thus, must be offered the ability to discover information in its own defense. The complaining party, on the other hand, by filing a complaint rather than pursuing its own civil action under section 813, places the conduct of the investigation in HUD’s hands and will not be allowed to conduct separate discovery. HUD notes that the Fair Housing Act does not foreclose a discovery avenue to aggrieved persons who have filed complaints, since the complainant may file a civil action under section 813(a) with regard to the alleged discriminatory housing practice and obtain discovery through the court proceeding.

No ‘actual harm’ done yet, so how can Landlord’s actions be discrimination?
I believe that using the threat of eviction to coerce my submission to discriminatory terms and conditions constitutes ‘discriminatory housing practices’ which have occurred and are ongoing. However, the law does not require a member of a protected class to suffer injury before filing a complaint. State and Federal law allows an “aggrieved person” to file a complaint or lawsuit if the person believes an injury caused by discriminatory action is “about to occur,” not just when an injury has already taken place. “[T]he Fair Housing Act does not require these persons to expose themselves to the injury involved with the actual act of discrimination before filing a comlaint [sic]” (Final Rule). Note that the language stating that a discriminatory act ‘has occurred . . . or is about to occur’ is repeated in the portion of Indiana Code that sets the standard for a finding of reasonable cause (see reasonable cause discussion below).

IC 22-9.5-2-2
“Aggrieved person” defined
Sec. 2. “Aggrieved person” includes any person who:
(1) claims to have been injured by a discriminatory housing practice; or
(2) believes that the person will be injured by a discriminatory housing practice that is about to occur.

[from Final Rule – 24 CFR] Section 100.20 Definitions.
The definition of the term “aggrieved person”, as any person who claims to have been injured by a discriminatory housing practice, or who believes that he or she will be injured by a discriminatory housing practice that is about to occur, is statutory and has not been changed in the final rule. The phrase “is about to occur” applies to a number of situations in which it is clear to a person that, if he or she takes an action, he or she will be subjected to a discriminatory act which will result in an injury. In such cases, the Fair Housing Act does not require these persons to expose themselves to the injury involved with the actual act of discrimination before filing a comlaint. [sic]

Evidence sufficient to win case is needed to find reasonable cause
Reasonable cause determinations are not meant to adjudicate violations. The probability of winning a case should not be a factor in determining reasonable cause. Reasonable cause may be found if the facts show that the respondent’s conduct “appears” to violate the Title 8 of the Fair Housing Act. “Rather than permitting consideration of the probability of winning the case, this [reasonable cause] standard is merely intended to require that the charge is well-grounded in the facts and that the conduct that is the subject of the complaint appears to constitute a violation of the Act”. [Final Rule]

Although the Indiana Code insists solely on facts as the basis for a finding of “reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur”, the term ‘reasonable cause’ does not appear to be defined in Indiana law. The Indiana Administrative Code’s standard is “whether the facts concerning the alleged discriminatory housing practices are sufficient to warrant the initiation of a civil action in state court.” 24 CFR 103.00 sets the standard of “whether the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in Federal court.

Thus the Indiana Administrative Code appears to set a lower standard (initiation of civil action in state court) than the standard prescribed by Federal law (initiation of civil action in Federal court). However, the Final Rule reminds us that to maintain its certification as a ‘jurisdiction with substantially equivalent laws’, ICRC “must administer laws which prohibit all discriminatory housing practices which are prohibited by the Act and must include as protected classes all classes protected by the Act” (24 CFR 84 Part 115). Section 816 [42 USC 3615] of the Fair Housing Act states plainly: “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 under this subchapter shall to that extent be invalid.”

IC 22-9.5-6-9
Sec. 9. (a) A finding of reasonable cause issued under section 8 of this chapter:
(1) must consist of a short and plain statement of the facts on which the commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur

910 IAC 2-6-6-(a) Issuance of Charge
.. . . the director . . . shall determine whether, based on the totality of the factual circumstances known at the time of the decision, reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur. The reasonable cause determination shall be based solely on the facts concerning the alleged discriminatory housing practice [acts prohibited by IC 22-9.5-5] provided by the complainant and respondent and otherwise disclosed during the investigation. In making the reasonable cause determination, the director shall consider whether the facts concerning the alleged discriminatory housing practices are sufficient to warrant the initiation of a civil action in state court.”

[24 CFR] Subpart F — Issuance of Charge § 103.400 Reasonable cause determination.
(a) If a conciliation agreement under § 103.310 has not been executed by the complainant and the respondent, and approved by the Assistant Secretary, the General Counsel, within the time limits set forth in paragraph (c) of this section, shall determine whether, based on the totality of the factual circumstances known at the time of the decision, reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur. The reasonable cause determination will be based solely on the facts concerning the alleged discriminatory housing practice, provided by complainant and respondent and otherwise, disclosed during the investigation. In making the reasonable cause determination, the General Counsel shall consider whether the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in Federal court.

From Final Rule – PART 103 — FAIR HOUSING — COMPLAINT PROCESSING Subpart F ‘Issuance of Charge’ 103.440 Reasonable cause determination
HUD has made an additional modification in the final rule to reflect HUD’s intent that the reasonable cause determination is to be based solely on the facts determined during investigation.

[…]

Rather than permitting consideration of the probability of winning the case, this standard is merely intended to require that the charge is well-grounded in the facts and that the conduct that is the subject of the complaint appears to constitute a violation of the Act.

Further clarification on the basis for a finding of reasonable cause is provided by HUD’s Reasonable Cause Guidance Memo (1999) which “sets guidelines to be used in making that [reasonable cause] determination under the [Fair Housing] Act.” This memo makes it clear that, after impartial review of the facts, a finding of reasonable cause should be based on the reviewer’s conclusion that a violation may have occurred. In a case with equal or conflicting evidence, the evidence may be construed in favor of the complainant and reasonable cause may be found.

From HUD’s Reasonable Cause Guidance Memo (1999). (Full text available at http://www.fairhousing.com/index.cfm?method=page.display&pagename=HUD_resources_reasonable_cause_memo )

“Reasonable cause to believe” [is defined by] 12 U.S.C. §4003(c)(1)(1998) [which] specifies that reasonable cause “requires the existence of facts which would cause a well-grounded belief in the mind of a reasonable person.”

“the quantum of evidence requisite in a determination of reasonable cause is less than that required in finding that a Federal statute actually was violated”

“reasonable cause determinations [are] not designed to adjudicate violations of Title VII). That finding is the responsibility of the ultimate factfinder, e.g., the court or administrative law judge . . .. Thus, reasonable cause in a fair housing case must be established by a lesser degree of evidence than that showing a violation by a preponderance of the evidence.”

reasonable cause exists when one can conclude based on all relevant evidence, viewed not as an advocate for either complainant or respondent but rather objectively in light of the Act’s prohibitionary language and case law, that violation may have occurred.

Reasonable cause . . .. exists when FHEO can conclude based on all relevant evidence, viewed not as an advocate for either complainant or respondent but rather objectively in light of the Act’s prohibitionary language and case law, that a violation may have occurred. In the event of a conflicting yet reasonable believed evidence after a full investigation, the evidence may be construed in favor of complainant. If the evidence appears to support complainant and respondent equally, a reasonable cause finding also may be made.

This completes the responses to questions raised during the ICRC investigation. A Review of Laws Prohibiting Discriminatory Housing Practices begins on the following page.

[Anne E.’s note, April 17 2008: The ‘Review of Laws’ mentioned here compares the language of Title VIII, 42 USC, and 24 CFR to the language of the Indiana Code. Because it is in ‘tables’ format (which WordPress doesn’t deal with well), I have omitted it here.]

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