A Citizen, Pro Se

Analysis of Notice of Finding (Dec 12 2007)

REVIEW BOARD
INDIANA CIVIL RIGHTS COMMISSION

Case Name: ‘Anne E. Citizen’ v Henderson Court et al.
ICRC No.: HOha07040187
HUD Case No.: 05-07-0776-8
HUD Section 504 Case No: 05-07-0106-4
HUD Inquiry No: 229400

APPEAL RE: NOTICE OF FINDING

‘Anne E. Citizen,’ Complainant
v.
[HUD Project-based Section 8 (Multifamily) Landlord], Respondents

Submitted by ‘Anne E. Citizen’ , Pro Se
December 12, 2007

COMPLAINANT’S ANALYSIS AND COMMENTS IN LIGHT OF EVIDENCE OMITTED FROM FINAL INVESTIGATIVE REPORT

The October 10, 2007 Notice of Finding signed by the Indiana Civil Rights Commission’s Deputy Director is based on a flawed and incomplete evidentiary record and thus cannot be considered valid.

The Final Investigative Report (FIR) in this case is flawed by substantial omissions of evidence submitted by the Complainant and Respondent. The incomplete FIR deprived the Deputy Director of a full evidentiary record on which to base the determination. A determination based on less than the totality of evidence does not meet the legal requirements for a valid determination.

It should be noted that the respondents in this case (hereafter ‘Respondent’) did not submit the signed, sworn statement of defenses against the allegations that the law and regulations require. The Respondent ‘failed to defend’. All defenses in this case were introduced by the ICRC Investigator based on the Respondent’s unsigned, unsworn, verbal statements.

Because the Final Investigative Report relied on the Respondent’s unsworn verbal statements and omitted the laws and regulations brought forward as evidence by the Complainant, the Deputy Director was deprived of the opportunity to assess the Respondent’s actions and statements in light of the law.

This document combines each paragraph of the November 10, 2007 Notice of Finding (‘Finding’) with the Complainant’s analysis and comments. The Complainant’s comments will often refer to evidentiary documents that were omitted from the Final Investigative Report, and which were thus omitted from consideration in preparing the Finding. The Complainant has submitted the omitted evidence, as well as other documents, for consideration by the Commission in its Appeal Review.

[Notice of Finding, Paragraph 1]
The Deputy Director of the Indiana Civil Rights Commission, pursuant to statutory authority and procedural regulations, hereby issues the following finding with respect to the above-referenced case. Reasonable cause does not exist to believe that an unlawful discriminatory practice has occurred. 910 IAC 2-6-6(c)(1)(2001).

[Comments on paragraph 1]
The Indiana Civil Rights Commission did not meet the performance standards established in Federal and state procedural regulations in producing (1) the Final Investigative Report (FIR) as a complete body of factual evidence and (2) a determination based on the totality of evidence. A considerable body of evidence was omitted from both the case file and the Final Investigative Report (FIR). This omitted evidence was in ICRC’s hands well before the October 10 Notice of Finding was issued. (See Complainant’s December 6 memo)

The erroneous and incomplete case file and FIR omitted many facts relevant to this case and led to a finding of ‘no reasonable cause’ that was not supported by the totality of the evidence available. A determination based on incomplete evidence does not meet established standards:

910 IAC 2-6-6 Issuance of charge
Sec. 6. (a) . . . [T]he 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 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.

[Notice of Finding, Paragraph 2]
On April 18, 2007, ‘Anne E. Citizen’ (Complainant) of Bloomington, IN, filed a complaint with the Indiana Civil Rights Commission (Commission) against [HUD Project-based Section 8 (Multifamily) Landlord], (Respondents) alleging unlawful discrimination in housing, based on disability. Indiana Fair Housing Act is virtually analogous to the Fair Housing Act, 42 U.S.C. [Section] 3601 et seq. Accordingly, the Commission has jurisdiction over the parties and the subject matter.

[Comments on paragraph 2]
The Complainant made the complaint by phone to the Chicago HUD/FHEO office on March 22. The case was filed by HUD on April 17, and referred to ICRC on April 18.

Notice of Finding states: “Indiana Fair Housing Act is virtually analogous to the Fair Housing Act, 42 U.S.C. [Section] 3601 et seq.” The term ‘virtually analogous’ is not defined by applicable laws or regulations, and thus has no legal meaning. Federal regulations do, however, define and set standards for ‘substantial equivalency’ as the basis for a FHAP agency’s certification. and thus for its authority to make determinations. ICRC’s procedures in the handling of ths case do not meet the performance standards established in 24 CFR 115 for ‘substantially equivalent’ handling of cases.

24 CFR 115.201 The two phases of substantial equivalency certification.
Substantial equivalency certification is granted if the Department determines that a state or local agency enforces a law that is substantially equivalent to the Fair Housing Act with regard to substantive rights, procedures, remedies, and the availability of judicial review. […]
 

[24 CFR 115.201](b) Adequacy of Performance. […] the Assistant Secretary will determine whether, in operation, the fair housing law that the agency administers provides rights, procedures, remedies, and the availability of judicial review that are substantially equivalent to those provided in the federal Fair Housing Act. […] (see also 24 CFR 115.206(e)(9) ).  

 

The performance standards established by HUD’s ‘substantial equivalency’ requirements are meant to insure that all affected citizens receive consistent ‘due process’ and equal access to justice. ICRC’s handling of this case does not conform to HUD’s ‘substantial equivalency’ standards, has negatively impacted the Complainant’s right to due process, and has resulted in an invalid determination.

[Notice of Finding, Paragraph 3]
An investigation has been completed. All parties have been interviewed. Based on the final investigative report and a full review of the relevant files and records, the Deputy Director now finds the following:

[Comments on paragraph 3]
The investigation in this case did not meet established standards. Several sources establish criteria for the conduct of an investigation and for the contents of the Final Investigative Report. ICRC’s work products in this case do not meet those criteria.

ICRC’s Cooperative Agreement, which regulates performance standards, states plainly: “Respondent’s rebuttal statements do not constitute an investigation and are not to be viewed as such.”

(1) The investigation and FIR would not meet the criteria established in ICRC’s Cooperative Agreement (Attachment A, Criteria for Processing) which, in part, governs ICRC’s certification as a ‘substantially equivalent’ FHAP agency. (see also 24 CFR 115.206(e)(9) ).
(2) Criteria for the Final Investigative Report (FIR) have been established by 24 CFR 103.230(a)(1-5), IC 22-9/5-6-7, and by 910 IAC 2-6-4(g)(1-5). These regulations require that the FIR contain: (1) names, dates of witnesses contacts; (2) summary of dates of contacts with parties; (3) summary of other pertinent records; (4) summary of witness statements.

The Final Investigative report omits significant records and does not meet the requirements of 24 CFR 103.230(a) (1) The names and dates of contacts with witnesses, [.. except for witnesses requesting anonymity..]; (2) A summary and the dates of correspondence and other contacts with the aggrieved person and the respondent;( 3) A summary description of other pertinent records . . ..

Complainant’s memo (Dec 6 2007; faxed to ICRC Dec 7) documents a substantial body of evidence (including dates and content of contacts with parties and summaries of pertinent records) which has been omitted from the FIR in this case. The Deputy Director’s Notice of Finding is based on a review of incomplete and incorrect files and records and thus is not based on the totality of evidence available to ICRC at the time the Notice of Finding was issued.

[Notice of Finding, Paragraph 4]
Complainant alleges because she is disabled, Respondent is denying her the peace and enjoyment of her apartment inviolation [sic] of Sections 804(f)(2) or 804(f)(3)(B) of Title VIII of the Civil Rights Act of 1968 as amended by the Fair Housing Act of 1988. Specifically, Complainant alleges that Respondent is requiring all disabled tenants with service animals to sign service animal agreements or be subjected to possible eviction. Complainant states that according to Dept of Housing & Urban Development (HUD) regulations, her signed lease agreement alone is sufficient for her to maintain a service animal and that any other document the Respondent requires her to sign is discriminatory due to different terms and conditions.

[Comments on paragraph 4]
Complainant agrees with Finding’s statement: “Complainant alleges that Respondent is requiring all disabled tenants with service animals to sign service animal agreements or be subjected to possible eviction. “ Respondent agrees that all tenants with service animals are required to sign two contracts, in addition to the lease, as a condition of residency. In Finding Paragraph 5 (below) “Respondent reported . . . all residents with service animals received the service animal agreements and were asked to sign the document. ”

Complainant and Respondent agree that Respondent requires all tenants with service animals to sign two contracts (in addition to the lease) as a condition of residency. Respondent contends that these actions are not discriminatory, whereas the letter of the law supports the Complainant’s contention that these contracts impose discriminatory ‘terms and conditions’ on a sub-group of disabled tenants.

An explicit policy that subjects a class (or sub-group) of tenants to different terms and conditions of residency which are not imposed on non-members of that class is considered direct evidence of prima facie discrimination. (See Complainant’s August 22 letter describing HUD ALJ ‘Country Manor’ case (omitted from case file and FIR, but appended to Complainant’s October 24 initial response to Notice of Finding).

As HUD project-based Section 8 housing, Henderson Court is governed by HUD regulations in addition to being governed by the Fair Housing Act. Complainant’s June 15 memo (omitted from case file and FIR) provided authoritative substantiation of her statement that ‘the lease is sufficient’ to govern her service animal. (See Paragraph 7 below for discussion)

[Notice of Finding, Paragraph 5]
Respondent denies the allegations of the complaint. Respondent states there are a total of five individuals, including the Complainant, who have service animals. All individuals with service animals received service animal agreements. Respondent reported Complainant was not singled out, since all residents with service animals received the service animal agreements and were aksed to sign the document.

[Comments on paragraph 5]
Respondent does not deny the allegations of the complaint; Respondent merely denies that the actions are discriminatory.

An explicit policy that subjects a class (or sub-group) of tenants to different terms and conditions of residency (as compared to non-members of that class) is considered direct evidence of prima facie disirimination. (See Complainant’s August 22 letter describing HUD ALJ ‘Country Manor’ case (omitted from case file and FIR, but appended to Complainant’s October 24 initial response to Notice of Finding).

[Notice of Finding, Paragraph 6]
Evidence provided indicated the Complainant was initially delivered a five-page service animal agreement that indicated home inspections would take place more frequently for individuals with service animals. The document also stated that violations of the service animal agreement could result in possible eviction. Respondent reported that the five-page service animal document was inadvertently delivered to the Complainant, as that was an outdated and obsolete agreement. Subsequently, a revised three-page service animal agreement was then delivered to the Complainant. The revised service animal agreement does not include the provision of frequent inspections, unless deemed necessary.

[Comments on paragraph 6]
Paragraph 6 of the Finding appears to conflate the Investigator’s May 1 interviews with Complainant and Respondent (as entered in TEAPOTS and the Final Investgative Report).

The Investigator’s May 1 interview with the Complainant, as recorded in FIR and TEAPOTS, contains two significant error of fact. See Complainant’s December 6 memo for correction of these errors, including: “This [May 1 interview] entry also misrepresents Complainant’s basis for complaint as concern about more frequent inspections, when the actual bases for the complaint are: discrimination in terms and conditions of rental due (a) to handicap and (b) to exercise of right to reasonable accommodation; coercion (using threat of eviction to coerce acceptance of discriminatory terms); interference, and ‘pattern and practice’ of interference, with right to reasonable accommodation; (see Complainant’s documents of May 16, June 17, June 26, July 24, August 8, and August 22.)”

Respondent’s explanation (as reported in Investigator’s May 1 interview) does not answer the allegations of the complaint. Respondent states that the delivery of the “outdated and obsolete” 5-page Service Animal Policy was a clerical error by a new manager.

Respondent’s ‘clerical error’ explanation replaces one discriminatory policy (the 5-page ‘Policy’) with another (the 2-page ‘Agreement’). The one-page Service Animal Permit accompanied both the Policy and the Agreement. These contracts are required only of disabled tenants who require the reasonable accommodation of a service animal. Thus these contracts meet the definition of ‘direct evidence of prima facie discrimination’ established by the ‘County Manor’ case.(See comments on Paragraphs 4 and 5 above for discussion)

In addition, these service animal contracts introduce a new basis for termination of the lease (eviction), an action contrary to the HUD Model lease which is the entire agreement between HUD Section 8 owners and their tenants. As stated in the October 25 letter from Complainant’s attorney, ” . . . [T]he Service Animal Permit to be signed by the resident states that a failure to comply with the Permit or Policy “shall be a default permitting termination”. This is contrary to the bases for termination in the lease, which must be met before a tenant can be terminated.”

Able-bodied tenants, and disabled tenants who do not require the reasonable accommodation of a service animal, are governed only by the HUD model lease, which is the ‘entire agreement’ between tenant and landlord. A sub-group of disabled tenants, whose handicaps require a particular reasonable accommodation, must accept ‘different terms and conditions,’ including additional bases for eviction, as conditions of residency. If they refuse to sign the service animal contracts these tenants are subject to immediate eviction. (See Respondent’s March 19 letter.) New, incoming tenants with service animals must sign these two contracts and accept the imposition of ‘terms and conditions’ on residency if they want Management’s permission to bring their animals into their apartments. (See Respondent’s Service Animal Permit, Policy, and Agreement)

[Notice of Finding, Paragraph 7]
Complainant is correct in that, according to the ADA, a service animal is not a pet and not subject to typical pet policies that may be imposed, such as additional deposits. However, an owner may enforce state and local health and safety laws regarding the animal, e.g., leash laws, inoculation, boosters, distemper and rabies shots. In addition, the owner may require that the tenant with a disability who uses an assistance animal be responsible for the care and maintenance of the animal, including the [page 3 begins] proper disposal of the assistance animals’ waste and cleanliness and maintenance of the tenant’s unit.

[Comments on paragraph 7]
This case is being brought on the basis of the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973; the Americans With Disabilities Act (ADA) is not directly relevant to this case.

The remainder of the paragraph echoes, but misrepresents, the language of HUD Handbook 4350.3, Ch 6-10A, which governs ‘pet rules’ in HUD housing. A full printout of HUD 4350.3 Ch 6 is included in the case file. Chapter 6-10A states:

[HUD Handbook 4350.3] 6-10 Pet Rules
[6-10A] 2. These pet rule requirements do not apply to family housing. Those properties are instead covered by state and local requirements.
3. The [pet rule] regulations apply to household pets only. (See the Glossary.)
4. An owner must not apply house pet rules to assistance animals . . . and their owners. This prohibition does not preclude an owner from enforcing state and local laws, if they apply. NOTE: An owner must not apply house pet rules to assistance animals and their owners. However, this prohibition does not preclude the owner from enforcing state and local health and safety laws, if they apply, nor does it preclude the owner from requiring that the tenant with a disability who uses an assistance animal be responsible for the care and maintenance of the animal, including the proper disposal of the assistance animals waste.

HUD Handbook 4350.3 Ch 6-10A makes it clear that (1) pet rules do not apply to ‘family housing’ (like Henderson Court); and that (2) ‘pet rules’ must not be applied to service animals (‘assistance animals’).

HUD 4350.3 Ch 6-10A “does not preclude the owner from enforcing state and local health and safety laws,” but it does not give the owner authority to require disabled tenants with service animals to sign two additional contracts as a condition of residency. State and local laws apply to assistance animals, and no additional contracts are needed to enforce such laws. (See also October 25 letter from Complainant’s attorney: Service Animal Policy contains terms more stringent than applicable local laws.)

HUD 4350.3 Ch 6-10A “[does not] preclude the owner from requiring that the tenant with a disability who uses an assistance animal be responsible for the care and maintenance of the animal . . ..” However, the HUD MultiFamily Mailbox[*] — an authoritative extension of HUD Handbook 4350.3 — clarifies the fact that the standard terms of the lease are sufficient to govern the service animal:

Answer to 4. stated in Chapter 6, Paragraph 6-10 A.4, an owner must not apply pet rules for common household pets to assistance animals (also referred to as “service
animals”, “support animals” or “therapy animals”) and their owners. However, the animal must meet all standard tenant lease requirements (e.g., noise, nuisance, security of other tenants). (See also Complainant’s June 15 memo (omitted from case file and FIR).
[*URL for this document — http://www.hud.gov/offices/hsg/mfh/rhiip/qnaon4350pt3.pdf%5D

[Notice of Finding, Paragraph 8]
Respondent contends that the signing of the service animal agreement would be viewed as an addendum to Complainant’s lease. Respondent further contends that Complainant was not treated differently, as all tenants with service animals were asked to sign the agreement.

[Comments on paragraph 8]
HUD regulations governing Section 8 Multifamily housing do not permit owners to add to or modify the lease without subjecting any proposed addendums to a comprehensive approval process. Respondent’s service animal contracts have not been approved by HUD, nor have they been submitted for approval. Therefore, Respondent’s service animal contracts cannot be used as ‘addendums’ to the lease. (See ‘Appeal Letter Supplement’ attached to October 25 letter from Complainant’s attorney; also HUD Handbook 4350.3 Ch 6-12.)

“Respondent further contends that . . . all tenants with service animals were asked to sign the agreement.” Once again, the Respondent agrees with the Complainant — that all disabled tenants requiring a reasonable accommodation (service animal) must sign two contracts (in addition to the lease) as ‘terms and conditions of residency’ due to the nature of their handicap.

The Respondent’s June 7 letter states this requirement clearly, thus establishing a ‘pattern and practice of resistance to the full enjoyment of rights protected by FHA Title 8″ (See: FHA 814, 42 USC 3614, IC 22-9.5-8.1-1; see also Complainant’s June 17 letter (omitted from case file and FIR)). The Respondent’s June 7 letter makes it clear that this ‘pattern and practice’ is being applied in all of Sheehan Property Management’s properties. In June 2007, SheehanPM owned and/or managed eleven properties with over 1600 units. As of November 14, SheehanPM owns and/or manages 13 properties with over 2000 units in Indiana and Illinois. (SheehanPM website, Nov 14 2007) These properties include conventional, LIHTC Section 42, and HUD Section 8 funding. All these properties are subject to the Fair Housing Act’s prohibitions on discriminatory actions.

The Respondent’s large and expanding tenant base makes the application of ‘different terms and conditions’ (due to handicap that requires a service animal as a reasonable accommodation) an issue of general public importance (See IC 22-9.5-8.1-1)

[Notice of Finding, Paragraph 9]
It is encumbered [sic] upon the property owner to enforce state and local laws as they applies [sic] to service animals and require all individuals must obtain the proper identification/ service animal permit, not only for the safety of the Complainant, but for the safety of the entire apartment community. Based on the foregoing, the evidence failed to show the Respondent discriminated against the Complainant based on her disability. Accordingly, The Deputy Director concludes there is no reasonable cause to believe a discriminatory housing act has occurred.

[Comments on paragraph 9]
Complainant asked the Deputy Director to clarify the language of this sentence: “It is encumbered [sic] upon the property owner to enforce state and local laws as they applies [sic] to service animals and require all individuals must obtain the proper identification/ service animal permit, not only for the safety of the Complainant, but for the safety of the entire apartment community.”

On November 4, Complainant asked the Deputy Director to: “(1) . . . clarify/explain the troublesome sentence above and (2) . . . provide me with either a copy of, or confirmation of the absence of, a law or regulation permitting or requiring property owners to require all individuals with service animals to “obtain the proper identification/ service animal permit”.

On November 15, the Deputy Director replied to question (1) above: “I agree that the sentence you are referring to is confusing and poorly written. The intent was to summarize the last paragraph on page two that indicated an owner may enforce state and local health and safety laws regarding animals such as leash laws or proof of distemper and rabies shots. Owners may require any tenant who has an animal to provide proof that the animal has been properly innoculated. I am not aware of a law that requires property owners to enforce the innoculation laws”

(Note: The Deputy Director did not respond to Question 2: ” . . . provide me with either a copy of, or confirmation of the absence of, a law or regulation permitting or requiring property owners to require all individuals with service animals to “obtain the proper identification/ service animal permit”.

The “last paragraph on page two” is paragraph 7 (above) which erroneously refers to the ADA (instead of FHA/Section 504) and which misrepresents HUD Handbook 4350.3 Ch 6-10A. (see above for discussion).

The Deputy Director offers no substantiation for the statement, “Owners may require any tenant who has an animal to provide proof that the animal has been properly innoculated.” or for the statement, “[owners may] require all individuals must obtain the proper identification/ service animal permit”. These defenses serve as an examples of attempting to apply ‘pet rules’ to service animals, which are governed by the lease and state/local law.

These defenses are untenable when compared to the plain language of HUD Handbook 4350.3 Ch 6-10A (and its extension in the MultiFamily Mailbox). As HUD Section 8 ‘multifamily’ housing, Henderson Court is prohibited from establishing ‘pet rules’. Owners of properties which can establish ‘pet rules’ may include the requirement that animal owners provide proof of inoculation and register their pets — but property owners can apply these requirements only to pets, not to service animals (HUD 4350.3 Ch 6-10A2).

Any citizen may ‘enforce’ animal-related health and safety laws by calling the appropriate local animal-control authority. The legal sanctions for violations of animal-related health and safety laws do not include eviction.

The terms of the HUD model lease, along with state and local laws, are all that is required to govern service animals. The Respondent’s service animal contracts are unsupported by any applicable law or regulation, and have not received the approval required by HUD for ‘addendums’ to the lease.

The Respondent’s service animal contracts and statements make it clear that service animal contracts are required only of a ‘class’ (sub-group) of residents — the sub-group of disabled who require a reasonable accommodation (service animal). (See Respondent’s June 7 letter, and the contracts themselves).

The Respondent’s service animal contracts are direct evidence of prima facie discrimination, as described in the HUD ALJ ‘County Manor’ case: “A policy that explicitly subjects a protected class to treatment differing from that of non-members of the protected class is facially discriminatory.” (See Complainant’s June 17 and August 22 memos (omitted from case file and FIR.))

The Finding states: “Based on the foregoing, the evidence failed to show the Respondent discriminated against the Complainant . . ..” The “foregoing” statements in the Notice of Finding are flawed by the Finding’s reliance on an inaccurate and incomplete case file and Final Investigative Report (FIR).

The Complainant’s review of the case file revealed: (1) a minimum of ten evidentiary documents missing from the case file and FIR; (2) a minimum of a further five evidentiary documents (some with multiple attachments) which were included in the case file but omitted from the FIR; and (3) a minimum of twelve additional mishandled documents, contacts (such as phone calls), and errors of fact in the case file and FIR. (See Complainant’s December 6 memo; also Paragraphs 2 and 3 above for discussion)

The Final Investigative Report (FIR) does not meet the criteria established by 24 CFR 103.230(a)(1-5), IC 22-9.5-6-7, and by 910 IAC 2-6-4(g)(1-5). In their current condition, neither the case file nor the FIR can provide the Deputy Director or any other reviewer with the “the totality of the factual circumstances” of this case. Yet IC 22-9.5-6-9 requires tht the finding of ‘reasonable cause/no reasonable cause’ must be based on the Final Investigative Report.

The October 10 Notice of Finding is based on an incomplete and erroneous Final Investigative Report and fails to meet the requirements that a Finding be based on ‘the totality of factual circumstances’. The Finding’s determination of ‘no reasonable cause’ does not meet its required standard of proof and cannot be considered valid.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: