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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TERRI L. HAMAD, et al.,

           Plaintiffs,

v.                                                              Case No. 00-72555
                                                                 JUDGE CORBETT O'MEARA
                                                                 MAGISTRATE JUDGE MARC L. GOLDMAN
WOODCREST CONDOMINIUMS
ASSOCIATION, et al.,

           Defendants.

BRIEF OF UNITED STATES AS AMICUS CURIAE

This brief addresses whether a condominium bylaw that restricts families with children to first floor units in a three story condominium complex discriminates on the basis of familial status in violation of the Act.

I.     FACTS

The underlying facts have been discussed in detail in previous court filings by the parties. The United States has therefore limited its discussion to those facts most pertinent to this brief.

In June 2000, the plaintiffs in this action, Terri and Akram Hamad and Kayla Joyella, brought suit under the Fair Housing Act against the Woodcrest Condominiums Association and other defendants responsible for the operation of the Woodcrest Condominiums, a three-story, 44-unit condominium development in Monroe, Michigan. See Hamad v. Woodcrest condominium Association, 328 F.3d 224, 229 (6th Cir. 2003). Plaintiffs challenged an Association bylaw that prohibited families with children from purchasing or living in units on the second or third floor. See ibid. The bylaw further provided that if a child moved in with an owner of a second or third floor unit, the owner would be fined if he or she failed to vacate the unit within one year of the child's arrival. (1) See ibid.

The Hamads are a married couple who allege they were restricted to purchasing a first floor unit because of the likelihood they would have children. They further allege that the bylaws made it difficult for them to sell their unit after they had a child. See ibid. Ms. Joyella owned a third floor unit and, at the time of the events in question, was taking preliminary steps to secure legal custody of her nephew. See ibid. Citing the bylaw discussed above, the Association denied Ms. Joyella's request to allow her 15 year old nephew to move in with her. See ibid.

The parties filed cross motions for partial summary judgment, see ibid., and on January 15, 2001, the United States filed a brief as amicus curiae in support of the plaintiffs' motion for summary judgment. On January 4 and June 8, 2001, respectively, this Court granted the defendants' motion for partial summary judgment as to the Hamads and Ms. Joyella, finding that plaintiffs lacked standing to challenge the Association's bylaw. The case then proceeded to trial on the plaintiffs' retaliation claims and this Court granted the defendants' motion for judgment as a matter of law. See Hamad, 328 F.3d at 229-230. Plaintiffs appealed. Following this Court's judgment, and while the plaintiffs' appeal was pending, the defendants and the United States entered into a settlement agreement in which the defendants agreed to eliminate the bylaw prohibiting families with children from living on the upper floors. (2) See id. at 234.

On July 17, 2003, the Court of Appeals reversed and remanded. Id. at 224. The court held that the Hamads and Joyella had standing to challenge the bylaw. Id. at 233. After finding that this Court's order denying the plaintiffs' motion for partial summary judgment was appealable, the court of appeals reversed the denial of the plaintiffs' motion for partial summary judgment and remanded for further consideration. See id. at 235. In dicta, the Court of Appeals stated that the condominium bylaw that prohibited families with children from living on the upper floors "facially discriminate[s] on the basis of familial status." See id. at 231.

ARGUMENT

The Association's Former Bylaw Prohibiting Families With Children From Living On the Second and Third Floors Violated the Fair Housing Act

A. The Former Bylaw Violated Section 804(a) and 804(b) of the Act.

Section 804(a) of the Act makes it unlawful "to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of . . . familial status . . . ." 42 U.S.C. § 3604(a) (emphasis added). Section 804(b) makes it unlawful "to discriminate against any person in the terms [or] conditions of sale or rental of a dwelling" because of familial status. 42 U.S.C. § 3604(b) (emphasis added).

Adopting and enforcing a written rule that prohibits families with children from living on the second and third floors of a condominium complex violates the plain language of sections 804(a) and (b) of the Fair Housing Act. See Fair Housing Congress v. Weber, 993 F. Supp. 1286, 1293 (C.D. Cal. 1997) (holding that similar rule violates Act); HUD v. Edelstein, H.U.D.A.L.J. 05-90-0821-1, 1991 WL 442784, at *5 (H.U.D. Dec. 9, 1991) (steering families with children to certain buildings in the apartment complex violates § 3604(a) because it "deprive[s] a protected homeseeker of housing opportunities in certain locations" solely because of familial status), aff'd, 978 F. 2d 1258 (6th Cir. 1992)(unpublished table decision). The former bylaw makes two thirds of the dwellings at Woodcrest (those on the second and third floors) unavailable to families with children, in violation of Section 804(a). It also imposes a discriminatory term or condition of sale on owners of second and third floor dwellings, in violation of section 804(b), by preventing such owners from selling their units to families with children and by requiring such owners to move within one year if they have a child. These restrictions contravene the Act, which "requires that persons with and without children be treated without distinction in the sale and rental of housing." See Seniors Civil Liberties Ass'n, Inc. v. Kemp, 761 F. Supp. 1528, 1556 (M.D. Fla. 1991) (emphasis added), aff'd, 965 F.2d 1030 (11th Cir. 1992).

As the HUD regulations state, it is unlawful because of familial status:

to restrict or attempt to restrict the choices of a person by word or conduct in connection with seeking, negotiating for, buying or renting a dwelling so as to perpetuate, or tend to perpetuate, segregated housing patterns, or to discourage or obstruct choices in a community, neighborhood or development."

24 C.F.R. § 100.70(a) (emphasis added). Among the practices prohibited are "[a]ssigning any person to a particular section of a community, neighborhood or development, or to a particular floor of a building," because of familial status. 24 C.F.R. § 100.70(c)(4). Because HUD is "the agency primarily charged with the Act's implementation and administration," courts must "ordinarily defer[ ] to [HUD's] reasonable interpretation" of the statute. See Meyer v. Holley, 123 S. Ct. 824, 830 (2003). As HUD's regulations are a reasonable interpretation of the statute, they are entitled to deference.

Contrary to what the Association has argued, the fact that the Association's former bylaw "[did] not prohibit all families with children" from living in Woodcrest, see Defendants' Memorandum in Opposition to Plaintiffs' Motion for Partial Judgment on the Pleadings, filed Sept. 26, 2000 (Def. Mem.) at 21-22, or "segregate[ ] [them] to particular buildings," see Defendants' Brief in Opposition to Plaintiffs' Motion for Partial Summary Judgment, filed Oct. 31, 2003 (Def. Brf.) at 15, does not change its unlawful character. The Act prohibits making "a dwelling" unavailable because of familial status. See 42 U.S.C.§ 3604(a). The Association's former bylaw, which prohibited families with children from living on the second and third floors, does just that. Limiting the number of available apartment units for children, as defendants did here, violates section 3604(a) of the Fair Housing Act.

Interpreting the Fair Housing Act to permit restrictions such as those previously adopted by the Association conflicts with the structure and purpose of the statute. The Fair Housing Act uses the same language to prohibit discrimination against families with children that it uses to prohibit discrimination based on race and other protected classes. See 42 U.S.C. § 3604. Under the Act, "families with children must be provided the same protections as other classes of persons." See HUD Preamble II, 24 C.F.R. Ch. 1., subch. A, app. I, 54 Fed. Reg. 3236 (Jan. 23, 1989). Defendants cannot segregate families with children in certain floors of the complex any more than they can restrict black tenants to certain areas of the complex. See HUD Preamble I, 53 Fed. Reg. 44995 (Nov. 7, 1988) ("it is appropriate to interpret the protections afforded [families with children] in the same manner as the protections provided others under provisions of the Fair Housing Act.").

Defendants have contended (Def. Mem. at 20, 23-24 and Def. Brf. at 16) that their restriction was justified by the need "to combat a noise problem" and that this was a legitimate nondiscriminatory reason for the policy. This argument lacks merit. It is true that when the evidence of discrimination is circumstantial, defendant can rebut a prima facie case of intentional discrimination by articulating a legitimate non-discriminatory reason for the discrimination. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-143 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Here, however, the evidence of discrimination is direct, not circumstantial. The Association's former bylaw "facially discriminate[s] on the basis of familial status." See Hamad, 323 F.3d at 231. Where the evidence for a prima facie case consists of direct evidence, defendants "'cannot rebut this type of showing of discrimination . . . simply by articulating or producing evidence of legitimate, nondiscriminatory reasons. . . .'" See Blalock v. Metals Trades, Inc., 775 F.2d 703, 711 (6th Cir. 1985) (quoting Lee v.Russell County Board of Education, 684 F. Supp. 769, 774 (11th Cir. 1982).

Nor is it of any consequence that defendants' discriminatory policy may have been based on a concern about reducing noise rather than an animus against families with children. Liability for intentional discrimination requires only that decisions be premised on a prohibited basis, not that decisions be motivated by invidious hostility or animus. See e.g. Goodman v. Lukens Steel Co., 482 U.S. 656, 669 (1987). As the Supreme Court explained in Int'l Union, UAW v. Johnson Controls:

[T]he absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.

499 U.S. 187, 199 (1991) (emphasis added).

Finally, concerns about noise do not justify excluding children from all or any portion of a building. If Congress had intended to create a "noise" exception to its prohibition against discrimination against families with children, it could have put one in the statute, just as it created a limited exemption for senior housing. See 42 U.S.C. § 3607(b). Congress did not include such an exemption however, and this court must give effect to the statute as written. See Weber, 993 F. Supp. at 1292 (noise and safety rules directed to children only violate § 3604, particularly when landlord could have effected less restrictive measures to achieve his objectives). In analogous situations, courts have held that the Act does not permit landlords to impose restrictions on children because of safety concerns. See, e.g., United States v. Grishman, 818 F. Supp. 21, 23 (D. Me. 1993) (granting partial summary judgment after rejecting safety defense because "[n]othing in the statute permits the owner to determine that risks and circumstances of his dwelling and the neighborhood make it inappropriate for children. That decision is for the tenant.") Edelstein, 1991 WL 442784, at *5 ("as a general rule, safety judgments are for informed parents to make, not landlords.").

B. The Association's Former Bylaw Violated Section 804(c) of the Act.

For reasons similar to those stated above, the Association's former bylaw violated section 804(c) of the Act. That section makes it unlawful "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . familial status . . . or an intention to make any such preference, limitation or discrimination." 42 U.S.C. § 3604(c); 24 C.F.R. § 100.75(b). The standard for determining whether a preference, limitation, or discrimination is "indicated" is an objective one: the question is whether an "ordinary" reader or listener would interpret the statement to indicate a preference, limitation or discrimination against members of a protected class. See Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991). Accord Jancik v. HUD, 44 F.3d 553, 556 (7th Cir. 1995); Soules v. HUD, 967 F.2d 817, 824(2d Cir. 1992); United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934 (1972). The unequivocal statement in the former bylaw that "no children under the age of 18, may reside on the second or third floor of any of the four buildings in the condominium project" indicates an intent to exclude children, in violation of section 3604(c).

See La. Acorn Fair Hous., Inc. v. Louisa Apartments, Inc., No. Civ. A. 98-2588, 1999 WL 562722, at *3 (E.D. La. July 29, 1999) (statement, "children on the premises is prohibited," discriminates against children in violation of the Act.).

CONCLUSION

For the reasons stated above, this Court should find that the Association's former bylaw prohibiting children from residing on the second and third floors of Woodcrest violated the Fair Housing Act.

Respectfully submitted,

Respectfully submitted,

JEFFREY G. COLLINS
United States Attorney

___________________________
PAMELA J. THOMPSON
Executive Assistant
United States Attorney
JUDITH E. LEVY
Asst. United States Attorney
Office of the U.S. Attorney
Suite 2001
211 W. Fort St.,
Detroit 48226-3211
Tel: (313) 226-9100
Fax: (313) 226-4609
R. ALEXANDER ACOSTA
Assistant Attorney General

___________________________
STEVEN H. ROSENBAUM
Chief
TIMOTHY J. MORAN
Deputy Chief
NANCY F. LANGWORTHY
Attorney
United States Department
Civil Rights Division
Of Justice
Housing and Civil
Enforcement Section
950 Pennsylvania Ave., NW
- G St.
Washington, D.C. 20530
Tel: (202) 616-8925
Fax: (202) 514-1116


1. The bylaw provided as follows: "No children under the age of 18, may reside on the second or third floors of any of the four buildings in the condominium project. In the event that a violation of this Section by a family in occupancy of a Unit results from the birth or adoption of a child, this restriction shall be suspended as to such family for a period of one year to enable the family a reasonable time with which to vacate such Unit."

2. The Court of Appeals rejected the defendants' argument that the settlement agreement rendered the case moot. Id. at 235.


Document Filed: November 5, 2003
General Information Housing and Civil Enforcement Section
 
Leadership
Steven H. Rosenbaum
Chief
Contact
Housing & Civil
Enforcement Section
(202) 514-4713
TTY - 202-305-1882
FAX - (202) 514-1116
To Report an Incident of Housing Discrimination:
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Mailing Contact
U.S. Department of Justice
Civil Rights Division
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Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530

Email: fairhousing@usdoj.gov

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