| COURT RULES THAT DISTRICT OF COLUMBIA HAS FAILED TO PROTECT PEOPLE WITH DEVELOPMENTAL DISABILITIES On March 30, 2007, the federal court for the District of Columbia issued a lengthy and detailed memorandum opinion in Evans v. Fenty, the Department’s long-standing case to protect the health, safety, and welfare of a class of approximately 650 people with mental retardation and other developmental disabilities living in the District of Columbia’s service-delivery area. The ruling was in response to a motion filed by the Department in 2006 asking the court to find the defendants out of compliance with existing court orders. An evidentiary hearing was held in October 2006. In general, the court held that “there has been systemic, continuous, and serious noncompliance with many of the Court’s Orders. Failures have occurred throughout defendants’ service delivery system, from providers to case managers to the managerial level. Nor are these failures limited to a few isolated providers or case managers. For these reasons, the Court finds that defendants’ noncompliance has been systemic. Defendants’ noncompliance has also been continuous: defendants’ service delivery system has been wholly inadequate ... for many years.” The court added that “plaintiffs and plaintiff-intervenor [the United States] have presented compelling evidence that defendants’ failures jeopardize class members’ health, safety, and welfare, contributing to deaths and hospitalizations that defendants’ own investigators have found were preventable. The Court finds therefore that defendants’ noncompliance with the Court’s Orders is serious.” Specifically, the court found that:
In spite of these strong findings, the court declined to find defendants in contempt or to appoint a receiver at this time, as requested by class counsel. Instead, the court directed that remedial hearings take place before the special masters in this case. SHERIFF’S OFFICE AGREES TO PROVIDE EFFECTIVE COMMUNICATION FOR DETAINEES On April 12, 2007, the Department entered a settlement agreement with the St. Lucie County, Florida, Sheriff’s Office to resolve two complaints of discrimination under title II of the ADA. One complaint alleged that the Sheriff’s Office failed to provide a qualified interpreter for an inmate who is deaf during his 280-day imprisonment at the County Jail. Another alleged that in an attempt to communicate with a detainee who is deaf, the Sheriff’s Office used a deputy Sheriff as an interpreter, but he lacked the necessary skills for interpreting services. The Sheriff’s Office agreed to establish procedures for effective communication, provide qualified interpreters, TTYs, and other auxiliary aids when needed, make telephone relay services available, and appoint an ADA coordinator. TWO BUSINESS ESTABLISHMENTS AGREE TO ADMIT SERVICE ANIMALS On March 13, 2007, the Department reached a settlement with the owners of the Log Cabin Restaurant in Loudon, Tennessee, resolving a complaint filed by a woman who uses a service animal. The complainant, who has a mobility disability, alleged that she was asked to leave when she attempted to purchase a meal because the owners objected to the presence of her service animal. The restaurant owners agreed to post a notice stating that they do not discriminate on the basis of disability and that service animals are welcome, to develop a policy on providing access to people with service animals, and to train current and future employees on the policy. On April 2, 2007, the Department reached a settlement with the owner of the Fort Wayne Country Inns and Suites Hotel in Fort Wayne, Indiana, resolving a complaint filed by a woman who uses a service animal. The complainant, who self-describes as a congenital triple amputee, alleged that the night desk clerk said she could not stay at the hotel with an animal. After the woman repeatedly explained that the dog was a service animal, the clerk finally said that she could stay but she needed to use the back door so other guests would not be disturbed by the animal. The hotel owner has adopted and posted a service animal policy and has agreed to train all current and future employees on this policy. HOSPITAL WILL PROVIDE EFFECTIVE COMMUNICATION FOR PATIENTS’ COMPANIONS On April 9, 2007, the Department reached a settlement with Inova Fairfax Hospital in Fairfax, Virginia, resolving an allegation that the hospital did not respond appropriately in an incident involving the daughter of a woman who is deaf. The mother accompanied her daughter to the hospital’s emergency room after the daughter, eight months pregnant, was involved in a car accident. Although the daughter expressly requested a sign language interpreter for her mother, Inova failed to call for an interpreter until 5 ½ hours after the initial request, forcing the daughter to act as the interpreter at the same time that she was receiving distressing news about her own condition. “Effective communication is particularly critical in the health care setting,” said Chuck Rosenberg, U.S. Attorney for the Eastern District of Virginia. “We are committed to ensuring that individuals with disabilities and their families are not subjected to unequal treatment because of poor communication with medical personnel about their symptoms, diagnoses and treatment.” Under the agreement, the hospital will assess the communication needs of individuals with speech or hearing impairments upon their arrival or at the time an appointment is scheduled to identify the appropriate auxiliary aid or service needed for effective communication. When an interpreter is needed, a qualified interpreter will be provided within specified time frames. Auxiliary aids and services will be provided to family members and companions as well as to patients when needed for effective communication. The hospital also agreed to pay the patient and her mother a total of $55,000 in compensation for the discriminatory treatment. MULTI FAMILY HOUSING ACCESS FORUM IN MINNEAPOLIS DRAWS LARGE TURNOUT
On May 22, 2007, in Minneapolis, Minnesota, Principal Deputy Assistant Attorney General Rena J. Comisac hosted the Civil Rights Division’s fifth Multi-Family Housing Access Forum program. Launched in 2005, the program’s objective is to help building professionals understand their legal obligations under the federal Fair Housing Act’s accessibility requirements and to celebrate partnerships that have successfully produced accessible multi family housing in which everyone profits – developers and consumers alike. The program was attended by nearly 100 developers and building professionals, government officials, and advocates for individuals with disabilities. In her opening remarks, Ms. Comisac discussed the need for accessible multi-family housing. She pointed out that the seven county Twin Cities area is home to 2.81 million people, an increase of over 6% since the 2000 Census. This growth is the equivalent of adding two cities the size of Bloomington to the region in just five years. Furthermore, as of 2004, 12% of Minnesota’s population over 5 years old and not living in an institution had a disability. From 1990 to 2000, Minnesota’s population of persons aged 65 or older grew almost 9%. For those aged 65 or older, the incidence of disability was 38%. Ms. Comisac emphasized that although the Civil Rights Division has obtained great results – over 13,000 housing units in 24 states are to be made accessible to people with disabilities as a result of settlements since fiscal year 2005 – lawsuits cannot and should not be the only approach to Fair Housing Act enforcement. Achieving compliance at the design and planning stages is a more timely and cost-effective means of ensuring that the housing needs of people with disabilities are met. Rachel K. Paulose, the United States Attorney for Minnesota, introduced Ms. Comisac and spoke about the Department’s enforcement activities. Steven H. Rosenbaum, chief of the Division’s Housing and Civil Enforcement Section, served as the moderator.
The program also featured presentations by James A. Dowds, president of Prima Land, a development firm in Minnesota, and Robert A. Plichta, AIA, CPP, of BSB Design, an international multi- family design firm. Mr. Dowds founded his company in 1992 to provide development and construction projects including multi-family housing. His firm has completed more than $35 million in residential, commercial, and industrial development projects in Minnesota and has earned numerous awards for its attention to the development of accessible housing. Mr. Plichta is the National Multi-Family Technical Coordinator to BSB’s 15 national offices. He has authored several in house training programs, is an advisor to the BSB University program, and continues to develop new curricula. Throughout his 25-year career, he has been involved in numerous projects, including single-family housing and developments; commercial, industrial, and institutional projects; and multi-family low, mid and high-rise projects. Mr. Dowds and Mr. Plichta discussed the housing needs of people with disabilities and offered suggestions about best practices to ensure compliance with the Fair Housing Act. They also demonstrated how they have met the needs of their clients and served customers with disabilities while maintaining high professional standards and profitable enterprises. As Mr. Dowds observed, many accessible features (e.g., curb ramps, accessible pedestrian routes, wider entrance doors) are considered “amenities” by residents who are not disabled. For more information about the Fair Housing Act and the Division’s enforcement activities, go to www.usdoj.gov/fairhousing. The next forum will be held in another major city in the fall of 2007. Previous forums were held in Phoenix, Atlanta, Dallas, and Chantilly, Virginia. NORTH CAROLINA TOWN AGREES TO ADOPT HOUSING POLICY ON ACCOMMODATING PEOPLE WITH DISABILITIES On April 20, 2007, the Department settled a lawsuit against Chapel Hill, North Carolina alleging that the town violated the Fair Housing Act when it refused to grant Sonya Dixon, a citizen of Chapel Hill, a reasonable accommodation for her disabled daughter. The town operates the Chapel Hill Department of Housing, which manages 336 public housing units at 13 sites in Chapel Hill. Ms. Dixon, then a resident of public housing, had repeatedly requested a transfer to a wheelchair accessible unit. “For nearly 20 years, federal law has protected people with disabilities from unlawful discrimination in the housing market,” said Assistant Attorney General Wan Kim. “The Justice Department is determined to ensure that the fair housing rights of Americans with disabilities are vigorously protected.” Under the settlement, pending approval by the federal court in Greensboro, Chapel Hill will pay $30,000 in damages to the family. The settlement also mandates that town employees undergo training on the requirements of the Fair Housing Act and that the town adopt a reasonable accommodation policy, post non discrimination policies, and submit periodic reports to the Justice Department. The case began when Ms. Dixon filed a fair housing complaint with the U.S. Department of Housing and Urban Development (HUD). After investigating the matter, HUD issued a charge of discrimination, and the matter was referred to the Justice Department, which filed the lawsuit in December 2005. “I applaud the Department of Justice’s ongoing commitment to enforcing the Fair Housing Act,” said Kim Kendrick, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “No one with a disability should be denied an accommodation they need to maintain their independence.” DEVELOPERS AND ARCHITECTS IN ILLINOIS AND NEW YORK ARE FOUND LIABLE FOR NON-ACCESSIBLE APARTMENT COMPLEXES On March 30, 2007, in separate lawsuits, two federal courts found developers and architects liable for violating the Fair Housing Act by building housing without required accessible features. By granting in part the Department’s “motion for summary judgment,” each court determined that a trial as to whether particular defendants violated the Fair Housing Act will not be necessary. In the first case, United States v. Shanrie, the federal court in East St. Louis, Illinois, found the developers and architect liable for designing and constructing the Applegate Apartments in Belleville, Illinois, in violation of the Fair Housing Act. The court rejected the defendants’ site impracticality defense, holding that this defense has to be based on an analysis done before construction, not afterwards as occurred in this case. With one exception, the defendants had conceded that, but for the alleged site impracticality, the complex was not accessible and would not comply with the Fair Housing Act. The court also rejected the defendants’ argument regarding ambiguity in the federal accessibility guidelines for kitchens promulgated by the Department of Housing and Urban Development, finding that the defendants had not made any attempt to show that the kitchens at issue were in fact accessible. Lastly, on the grounds that there were material issues of fact regarding the extent of the involvement of an engineering firm originally named by the Department as a defendant, the court denied in part the Department’s motion for summary judgment. The court’s order is posted at http://www.usdoj.gov/crt/housing/documents/shanrieorder_3-30-07.pdf. In the second case, United States v. Tanski et al., the federal court in Syracuse, New York, found that the principal defendants violated the Fair Housing Act by failing to construct seven apartment complexes near Albany, New York, with required accessibility features for people with disabilities. The court rejected various arguments put forth by the defendants and ruled against the two main defendants in large part based on measurements taken by the Department’s expert witness. Finally, the court ordered the defendants to produce detailed remedial plans showing how the complexes would be brought into compliance with federal accessibility standards. The court did not grant summary judgment against the engineer who drew the plans for one of the seven complexes or grant summary judgment on the Department’s claim that the owner of one complex refused to grant a reasonable accommodation to a disabled tenant. The court’s order is posted at http://www.usdoj.gov/crt/housing/documents/tanskiorder_3-30-07.pdf. Did you know... ILLINOIS DEVELOPMENT WILL COMPENSATE VICTIMS OF DISABILITY DISCRIMINATION On April 18, 2007, the federal court in Urbana, Illinois, approved a settlement in United States v. Town of Lake Hunting and Fishing Club, a residential hunting and fishing club in Momence, Illinois. In its complaint the Department alleged that the club violated the Fair Housing Act when it refused to allow Bill and Gail Joly to install wheelchair ramps and a sidewalk at the entrances to their house and then expelled them from the club. Under the settlement, the club must pay the Jolys $40,000 in damages and attorney’s fees, allow the ramps and sidewalks to be installed, waive all prior claims against the Jolys for past dues and attorney’s fees, reinstate Bill Joly as a member of the club in good standing, and send the president of its board of directors to fair housing training. This case was referred to the Department by the Department of Housing and Urban Development. ILLINOIS DEVELOPER WILL COMPENSATE VICTIMS OF DISABILITY DISCRIMINATION On April 12, 2007, the federal court in Springfield, Illinois, approved a settlement in the Department’s lawsuit against Fleetwood Capital Development, LLC, and the estate of its former principal officer, John Howard (now deceased), developers of a subdivision in the area of Springfield, Illinois. The suit alleged that the defendants violated the Fair Housing Act by refusing to sell a lot in their new subdivision to Bethesda Lutheran Homes and Services after learning that Bethesda intended to use the property for a group home for six adults with developmental disabilities. “All persons with disabilities deserve the right to be protected by federal civil rights laws,” said Assistant Attorney General Wan Kim. “The Justice Department will continue to vigorously enforce the federal fair housing laws to provide fairness in housing markets.” Under the settlement, the defendants will adopt nondiscriminatory procedures for the sale of the remaining lots in the subdivision, pay $50,000 in monetary damages to Bethesda, and pay $10,000 as a civil penalty to the United States. DEPARTMENT SUES APARTMENT COMPLEX IN WASHINGTON STATE FOR FAILING TO PROVIDE REASONABLE ACCOMMODATION On May 1, 2007, the Department filed a complaint against the owners and managers of Valley View Apartments in Longview, Washington. In its complaint, which was filed in federal court in Tacoma, the Department alleged that the defendants discriminated on the basis of disability by refusing a disabled tenant’s request for an additional parking space as a reasonable accom-modation of his disability. The complaint also alleged that the defendants sought to evict the tenant after he requested the accommodation. The case was referred to the Department by the Department of Housing and Urban Development, which investigated the tenant’s complaint and determined that there was reasonable cause to believe that the defendants had engaged in discrimination. LAS VEGAS DEVELOPER AND ARCHITECT AGREE TO RETROFIT CONDOMINIUM UNITS On May 11, 2007, the Department settled a lawsuit against Pacific Homes and Pacific Properties and Development Corp., the developers and builders, and Michael Milburn, the architect, of the Pacific Legends West condominium complex in Las Vegas, Nevada. The suit, filed in November 2005, was brought to enforce provisions of the federal Fair Housing Act that require recently constructed dwellings to include features designed to make the dwellings more accessible to people with physical disabilities. Pacific Legends West is comprised of 23 two story buildings containing 210 townhouse style two and three-bedroom condominium units, including 92 ground floor units. Under the Fair Housing Act, ground floor units in non elevator buildings must contain certain accessible features, including accessible routes into and through the units and usable kitchens and bathrooms. Under the settlement, which was approved by the federal court in Las Vegas on May 23, the defendants must retrofit condominium units upon the request of the homeowner; retrofit public and common use areas; provide accessible pedestrian routes; pay $100,000 in damages to nine aggrieved individuals; and undergo training on the requirements of the Fair Housing Act. DEPARTMENT SUES HOUSING AUTHORITY IN ALABAMA FOR DISABILITY DISCRIMINATION On April 13, 2007, the Department filed a lawsuit against the Ashford Housing Authority in Ashford, Alabama, and its executive director, Shirley Foxworth, alleging that they evicted a mentally and physically disabled tenant while he was hospitalized after experiencing a diabetic coma. The Authority, which receives federal funding from the Department of Housing and Urban Development, owns and operates Magnolia Apartments, at which Ms. Foxworth is the on-site manager. According to the complaint, which was filed in federal court in Montgomery, the defendants violated the Fair Housing Act by evicting the tenant because of his mental disabilities, in violation of state law and federal regulations that protect the rights of public housing tenants. The ADA Mediation Program is a Department sponsored initiative intended to resolve ADA complaints in an efficient manner. Mediation cases are initiated upon referral by the Department when both the complainant and the respondent agree to participate. The program uses professional mediators who are trained in the legal requirements of the ADA and has proven effective in resolving complaints at less cost and in less time than traditional investigations or litigation. Over 75% of all complaints mediated have been settled successfully. In this issue, we highlight complaints against cultural centers that have been successfully mediated.
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A New York performing arts center agreed to institute a policy to accommodate people with disabilities when they call to make arrangements to attend performances, to review all future contracts with performers to ensure that performers do not interfere with accessibility, and to inspect the facility to improve wheelchair access. The club also agreed to provide four complimentary tickets to the complainant for any performance the complainant chooses and to make a substantial compensatory payment to the complainant.
June 13, 2007