Housing Section Documents
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BALTIMORE NEIGHBORHOODS,
INC., et al.,
Plaintiffs,
v.
ROMMEL BUILDERS, INC.
Defendants.
------------------------------
BRIEF OF THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF EQUITABLE RELIEF
TABLE OF CONTENTS
- INTEREST OF THE UNITED STATES
- BACKGROUND AND LIABILITY FINDINGS
- THE RELIEF SOUGHT BY PLAINTIFFS
- ARGUMENT
- STANDARD FOR RELIEF UNDER THE FAIR HOUSING ACT
- Statutory Provision Authorizing Relief
- Equitable Relief Under the Fair Housing Act
- PLAINTIFFS' PROPOSED EQUITABLE RELIEF CONSTITUTES APPROPRIATE RELIEF UNDER THE FAIR HOUSING ACT
- CONCLUSION
TABLE OF AUTHORITIES
- INTEREST OF THE UNITED STATES
In 1988, Congress amended Section 804 of the Fair Housing Act
to, inter alia, make it unlawful to discriminate against any person
in housing on the basis of handicap and defined "discrimination" to
include the failure to design and construct certain covered multi-family dwellings so that they would be accessible and usable by
persons with disabilities. See 42 U.S.C. §§ 3604(f)(3)(C). This
case is among the first such case to be litigated through liability
to a consideration of an appropriate remedy by a federal court.(1)
The United States has important enforcement responsibilities
under the Act. For instance, the Attorney General may initiate
civil proceedings on behalf of the United States in "pattern or
practice" cases, 42 U.S.C. §3614(a), or on behalf of an aggrieved
person, following a determination by the Department of Housing and
Urban Development ("HUD") of reasonable cause and an election by
either the complainant or respondent to a complaint of housing
discrimination filed with HUD to proceed in federal court. See 42
U.S.C. 3612(o).(2)
Any equitable remedy ordered by this Court will set an
important precedent which could impact the enforcement efforts of
the United States.(3) The United States, therefore, has an interest
in setting forth its views as to appropriate equitable relief.(4)
- BACKGROUND AND LIABILITY FINDINGS
Plaintiffs, Baltimore Neighborhoods, Inc. ("BNI") and Kevin
Beverly, brought this action against defendants Rommel Builders,
Inc. ("Rommel"),; LOB, Inc., ("LOB"); and John A. Rommel alleging,
inter alia, that they had designed and constructed certain common
areas and the ground floor units in ten of the buildings at the
Lions Gate Garden Condominiums ("Lions Gate") such that they are
inaccessible to persons with disabilities and, accordingly, violate
the amended Fair Housing Act, 42 U.S.C. §§ 3601-3619 ("the Act").(5)
Pursuant to Rule 19(a), F. R. Civ. P., plaintiffs joined Lions Gate
Garden Condominium, Inc. ("LGGCI"), which controls the common areas
of the complex, as a party necessary for complete relief.(6)
On March 15, 1999, this Court granted summary judgment as to
liability in favor of the plaintiffs on most of their claims under
the Fair Housing Act. Baltimore Neighborhoods, Inc. v. Rommel
Builders, Inc., 40 F. Supp. 2d 700, 713 (D. Md. 1999) ("Rommel
Builders"). In particular, this Court ruled that defendants Rommel
Builders, LOB, and John Rommel had violated Section 804(f)(3)(C) of
the Fair Housing Act, 42 U.S.C. §3604(f)(3)(C), by having designed
and constructed Lions Gate, so that it is inaccessible to persons
with disabilities. This Court ruled that plaintiffs had
established, "as a matter of law," the following substantive
violations of the Act at Lions Gate which make much of that complex
inaccessible to persons with mobility impairments: (1) a lack of
accessible parking spaces and the existence of steps in the
sidewalks between the parking areas and Buildings 3-13; (2)
insufficiently wide interior doorways inside all ground floor units
in Buildings 3-12; (3) a step up into every ground floor unit in
Buildings 3-12 and a step down to every ground floor unit in
Buildings 3-13; (4) insufficient clearance space to maneuver on the
latch side of a door with a closer in the rear ground floor units
of Buildings 3-13; (5) twist doorknobs on exterior doors of all
ground floor units in Buildings 3-13; (6) insufficient clearance in
bathrooms in all ground floor units of Buildings 3-13; (7)
unadjustable countertops in kitchens in all ground units of
Buildings 3-13; and (8) insufficient clearance space in kitchens of
rear units in Buildings 3-13. Id.(7) Based on those findings, this
Court held LOB, John Rommel, and Rommel Builders jointly and
severally liable for the Fair Housing Act violations established by
plaintiffs. Id. at 714.
In its ruling, this Court also concluded that it "was
appropriate to keep LGGCI in the case so long as it represents the
owners of the common areas with alleged violations," noting that
"LGGCI's presence as a party in the suit appears imperative in
order to afford full relief, if necessary, recognizing it bears no
financial obligation to plaintiffs in this case." Id. at 712
(emphasis added). This Court noted:
In this case, plaintiffs are not seeking an order
to retrofit individual units owned by bona fide
purchasers, but rather an order establishing a fund
for retrofitting common areas owned in undivided,
equal shares by the individual owners and
controlled by LGGCI. LGGCI concedes that it has
architectural control over the common areas at the
condominium so presumably it would have the
authority to permit retrofitting to the common
areas.
Id. It observed that the Act should be construed to "allow[]
courts to order retrofitting relief to common areas while being
mindful that the least intrusive remedies must be employed when
possible." Id. To read the Act in such a way as to prohibit such relief, "would result in a right without a remedy." Id.
- THE RELIEF SOUGHT BY PLAINTIFFS
In November 1999, this case proceeded to trial against
defendants LOB and LGGCI(8) as to an appropriate remedy and the few
remaining factual issues pertaining to liability.(9) In addition to
seeking damages, attorneys fees, and costs on behalf of BNI and
Kevin Beverly, see Pl. Post-Trial Memo, pp. 9-11, plaintiffs seek
"equitable/affirmative action" relief. Id. at 11-21. As the
plaintiffs have succinctly argued, "Affirmative action relief, in
the form of retrofitting certain common elements of Lions Gate, and
creating a fund whereby existing unit owners can be assisted (and
encouraged) to retrofit the interiors of their units on a voluntary
basis, is at the heart of this case." Id. at 11. To that end, the
plaintiffs seek, inter alia, an Order providing for sufficient
funds to retrofit the common exteriors and the interiors of all
forty noncompliant units, requiring LGGCI to permit the necessary
retrofitting of the common areas and interiors of individual units
if desired by their owners, directing that any funds remaining in
the retrofitting fund after the retrofitting has been completed
revert to BNI, and continuing jurisdiction in this Court until the
retrofitting work has been completed. Id. at 22-23.(10)
- ARGUMENT
- STANDARD FOR RELIEF UNDER THE FAIR HOUSING ACT
- Statutory Provision Authorizing Relief
In a civil action by private persons, the Fair Housing Act
provides that, where, as here, a court has found that a
discriminatory housing practice has occurred, a court may
award to the plaintiff actual and punitive damages,
and subject to subsection [813] (d), may grant as
relief, as the court deems appropriate, any
permanent or temporary injunction, temporary
restraining order, or other order (including an
order enjoining the defendant from engaging in such
practice or ordering such affirmative action as may
be appropriate).
42 U.S.C. § 3613(c) (emphasis supplied).(11)
- Equitable Relief Under the Fair Housing Act
Once a party has "established the violation of a * * *
statutory right in the civil rights area, as plaintiffs have
already done here, a district court has broad and flexible
equitable powers to fashion a remedy that will fully correct past
wrongs." Smith v. Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir.
1982) (relief under Fair Housing Act). Accord: United States v.
Warwick Mobile Homes Estates, 558 F.2d 194, 197 (4th Cir. 1977);
Park View Heights v. City of Black Jack, 605 F.2d 1033, 1036 (8th
Cir. 1979), cert. denied, 445 U.S. 905 (1980). In such
circumstances, "Courts have the power and the duty to fashion
affirmative relief so as to provide an effective federal remedy
where federal law is violated." Johnson v. Capitol City Lodge No.
74, Fraternal Order of Police, 477 F. 2d 601, 603 (4th Cir. 1973)
(reversing district court refusal to order affirmative relief in
light of finding of racial discrimination). "[P]articularly in a
fair housing situation, the existence of a federal statutory right
implies the existence of all measures necessary and appropriate to
protect federal rights and implement federal policies."
Metropolitan Housing Dev. Corp. v. Village of Arlington Heights,
616 F.2d 1006, 1011 (7th Cir. 1980).
Once invoked, the scope of a district court's equitable powers
to remedy past wrongs is "broad," Arlington Heights, 469 F. Supp.
836, 856 (N.D. Ill. 1979), aff'd 616 F.2d 1006. Accordingly,
those powers include, inter alia, "the power to decide all relevant
matters in dispute and to award complete relief even though the
decree includes that which might be conferred by a court of law,"
Porter v. Warner Holding Co., 328 U.S. 395, 399 (1946); the power
to bring before the court and to authorize relief against third
parties "if effective implementation of public policy cannot be
decreed" without their involvement, United States v. Coca-Cola
Bottling Co. of Los Angeles, 575 F.2d 222, 229-30 (9th Cir. 1978),
cert. denied by, Aqua Media Ltd. v. United States, 439 U.S. 959
(1978), and see Arlington Heights, 459 F. Supp. at 858 n.23
(quoting, with approval, Coca-Cola Bottling);(12) the power to order
compensatory programs to overcome the effects of prior
discrimination, see e.g., Milliken v. Bradley, 433 U.S. 267, 272
(1977) ("magnet" schools included as part of school desegregation
order); and the power "to fashion injunctive relief requiring a
defendant to pay monies into a remedial fund, if there is a nexus
between the harm and the remedy." Public Interest Research Group
of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64,
82 (3rd Cir. 1990), cert. denied sub nom, Powell Duffryn Terminals,
Inc. v. Public Interest Research Group of N.J., Inc., 498 U.S. 1109
(1991).
It is true that Section 813(c) of the Fair Housing Act grants
discretion to a court to order "appropriate" relief, including any
"affirmative action." 42 U.S.C. § 3613(c). Yet a court may not
refuse to order injunctive relief when doing so will permit a
violation to go uncorrected. See TVA v. Hill, 437 U.S. 153, 173
(1978) (holding that court was required to enjoin construction of
dam to prevent violation of Endangered Species Act, 16 U.S.C.
§ 1531 et seq.).(13) Rather, the vesting of such discretionary
equitable powers in a court is designed to permit the fashioning of
the most thorough relief possible, consistent with the "historic
purpose of equity to 'secur(e) complete justice [citations
omitted].'" Albermarle Paper Co. v. Moody, 422 U.S. 405, 418, 421
(1975) (construing a similar grant of "discretionary" authority
under Title VII). The statutory directive of the Fair Housing Act
to this Court is to consider "ordering such affirmative action as
may be appropriate." 42 U.S.C. § 3613(c). As the Supreme Court
has noted, "Affirmative action 'promptly operates to change the
outward and visible signs of yesterday's [discriminatory]
distinctions and thus, to provide an impetus to the process of
dismantling the barriers, psychological or otherwise, erected by
past practices.'" Local 28, Sheet Metal Workers' Int'l Ass'n v.
EEOC, 478 U.S. 421, 450 (1986) (internal citation omitted). Here,
the discriminatory "barriers" to be dismantled are literally forged
in concrete.
When a federal statute directs a court to grant such relief as
it deems "appropriate," the "ordinary meaning of these words confers
broad discretion on the court. * * * Absent other reference, the
only possible interpretation is that the relief is to be
'appropriate' in light of the purpose of the Act." School Committee
of the Town of Burlington v. Dept. of Educ., 471 U.S. 359, 369
(1996) (construing provision of Education of the Handicapped Act,
20 U.S.C. § 1415(e), conferring authority on district courts to
"grant such relief as it determines is appropriate").(14) As the Court
of Appeals for this Circuit has observed, "In fashioning equitable
relief for the violation of the Fair Housing Act, trial courts, or
course are guided by its underlying purposes." Town of Clarkton,
682 F.2d at 1067.(15)
The Fair Housing Act declares that "[i]t is the policy of the
United States to provide, within constitutional limitations, for
fair housing throughout the United States." 42 U.S.C. § 3601. The
Act employs a "'broad and inclusive' compass" and is entitled to a
"'generous construction.'" City of Edmonds v. Oxford House, Inc.,
514 U.S. 725, 731 (1995), to give effect to a "policy that Congress
considered to be of the highest priority." Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. 205, 212 (1972). See also
Walker v. Crigler, 976 F.2d 900, 904 (4th Cir. 1992)(recognizing
that providing for fair housing is an "overriding societal
priority").
In 1988, Congress enacted the Fair Housing Amendments Act,
Pub. L. No. 100-430, 102 Stat. 1619, now codified at 42 U.S.C.
§§ 3601-3619, which extended the protection of the federal fair
housing law to persons with disabilities. As amended, the Act
constitutes "a broad mandate to eliminate discrimination against
and equalize housing opportunities for disabled individuals."
Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). It represents
a "clear pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the American
mainstream." H.R. Rep. No. 100-711, 100th Cong., 2d Sess. 25
(1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2186 ("House Report").
Among the practices Congress intended to address through the
enactment was the "consistent failure to design and build housing
having accessible features." 134 Cong. Rec. S10544-02 (Aug. 2,
1988); 1988 WL 174369 at *31 (statement of Sen. Stafford).
Accordingly, Congress included in its definition of "discrimination"
on the basis of handicap, the failure, in connection with certain
covered multi-family housing, "to design and construct" dwellings
in such a manner that they would be accessible and usable by
persons with disabilities. 42 U.S.C. § 3604(f)(3)(C). Here, this
Court has found that defendants LOB, Rommel Builders, and John
Rommel have failed to comply with that nondiscriminatory mandate in
their design and construction of the ground floor units and common
areas at Lions Gate. See pp. 3-4, supra.
The need for the legislation was noted in the House Report
which accompanied the bill:
Because persons with mobility impairments need
to be able to get into and around a dwelling unit
(or else they are in effect excluded because of
their handicap), the bill requires that in the
future covered multifamily dwellings be accessible
and adaptable. This means that the doors and
hallways must be wide enough to accommodate
wheelchairs, switches and other controls must be in
convenient locations, most rooms and spaces must be
on an accessible route, and disabled persons should
be able to easily make additional accommodations if
needed, such as installing grab bars in the
bathroom, without major renovation or structural
change.
House Report, at 18, reprinted in 1988 U.S.C.C.A.N. at 2179.
Congress viewed the accessibility provisions of the Act as
essential to providing equal housing opportunity to persons with
disabilities who are mobility impaired:
A person using a wheelchair is just as effectively
excluded from the opportunity to live in a
particular dwelling by the lack of access into the
unit and by too narrow doorways as by a posted sign
saying "No Handicapped People Allowed."
H.R. Rep. No. 711 at 25, reprinted in 1988 U.S.C.A.N. at 2186. As
one of the supporters of the bill in the House noted regarding the
accessibility provisions of the Act, the legislation "present[s]
a reasonable framework for tearing down longstanding barriers to
discrimination at minimal costs." 134 Cong. Rec. H4898-04
(Jun. 29, 1988) (Remarks of Rep. Schumer).
While not all housing is covered by its "design and
construction" provisions,(16) the Act broadly includes within its
coverage all ground floor units in non-elevator buildings comprised
of four or more units built designed and constructed for first
occupancy after March 13, 1991. See 42 U.S.C. §3604(f)(3)(C) and
(f)(7)(B).(17) There are no statutory exclusions to this coverage
based on any perceived need, or lack thereof, of the required
accessibility features in a particular community or development or
on any cost considerations to a particular housing provider.(18) The
Act envisions that all dwellings falling within the definition of
"covered multi-family housing" will be accessible in the manner
prescribed by Congress and that the Nation's housing supply will
reflect a concomitant increase in the number of accessible units.
That statutory mandate and goal is reflected in the plain
language of the Fair Housing Act itself. The Act provides two
distinct approaches for providing for housing accessibility: one
to apply to all housing (including those structures designed and
constructed for first occupancy on or before March 13, 1991), and
one to apply to housing designed and constructed for first
occupancy after that date. Section 804(f)(3)(A) of the Act, 42
U.S.C. § 3604(f)(3)(A), makes unlawful the "refusal to permit, at
the expense of [a] handicapped person, reasonable modifications of
existing premises * * * if such modifications may be necessary to
afford such person full enjoyment of the premises * * *." Section
804(f)(3)(C) of the Act, 42 U.S.C. § 3604(f)(3)(C), which is at
issue in this case, makes it unlawful to "design and construct"
certain covered multi-family dwellings without the required
features of accessibility. Under the latter provision, it is the
housing provider that bears the cost and responsibility of insuring
that dwelling units are accessible and usable by persons with
disabilities; and that provider is not free to consider the
"reasonableness" of providing the features necessary to provide
accessibility to persons with disabilities. Such balancing was
undertaken by Congress. See e.g., House Report, at 18, 1988
U.S.C.A.N. at 2179 ("These modest requirements will be incorporated
into the design and construction of new buildings, resulting in
features which do not look unusual and will not add significant
additional costs.").(19) "When Congress itself has struck the balance,
has defined the weight to be given the competing interests, a court
of equity is not justified in ignoring that pronouncement under the
guise of exercising equitable discretion." Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 609-10 (1952)(Frankfurter, J.,
concurring).
Indeed, in its consideration of the bill ultimately enacted,
the House rejected a proposed amendment offered by Representative
McCollum which would have permitted housing providers to construct
only 10 percent of covered multi-family dwellings in such a manner
that they "are, or can be adapted to be, accessible and usable by
handicapped persons." 134 Cong. Rec. H4898-04 (Jun 29, 1988), 1988
WL 173277 *8.(20) Similarly, the Senate rejected a proposed amendment
offered by Senator Humphrey which would have required only twenty
percent of the units at a multi-family complex to be designed and
constructed to accommodate mobility-impaired persons.(21) In speaking
against the proposal, Senator Kennedy, one of the sponsors of the
bill as originally drafted, emphasized the goal of the legislation:
We are going to have basic kinds of infrastructure
so that those who are handicapped and disabled --
whether they are today, or whether they will be
tomorrow -- we are not going to require them, when
they go out and break that hip, not to have that
accessibility.
134 Cong. Rec. S10539 (Aug. 2, 1988); 1988 WL 174637 at *45.
By its rejection of proposals to limit the percentage of units
in covered multi-family housing which were to provide accessible
dwellings and by the plain language of the Act itself, Congress
made clear its expectations that all ground floor units in covered
multi-family dwellings, such as Lions Gate, were to comply with the
statutory mandate. Accordingly, any equitable remedy ordered must
address, either through retrofitting or some other equivalency, the
loss of those accessible units to the Nation's housing market.
- PLAINTIFFS' PROPOSED RETROFITTING CONSTITUTES APPROPRIATE RELIEF UNDER THE FAIR HOUSING ACT
Plaintiffs have proposed affirmative relief which seeks the
retrofitting of the common areas and of the interior units at Lions
Gate. They have asked that this Court order LGGCI to permit the
retrofitting of the inaccessible common areas and individual units
and that individual unit owners be offered an incentive of $1,000
to permit retrofitting in individual units. To pay for the costs
associated with the retrofitting, plaintiffs have asked this Court
to establish a retrofit fund which would include funds for the
proposed retrofitting of the common areas and individual units and
the incentive payments to individual owners. Further, should there
be any funds remaining after a time to be set by the Court, those
funds would revert to BNI. In addition, plaintiffs have asked this
Court to retain jurisdiction pending completion of the retrofit
work. See pp. 5-6, supra.
The relief sought by plaintiffs is consistent with the goal of
equity to "secure complete justice", see p. 9, supra, and with the
"reasonable [legislative] framework for tearing down longstanding
barriers to discrimination at minimal costs." See p. 13, supra
(quoting Rep. Schumer). It serves the statutory goal of furthering
the "national commitment to end the unnecessary exclusion of
persons with handicaps from the American mainstream," House
Report, at 25 (see p. 12, supra), by providing a remedy which has
the potential of bringing the inaccessible common areas and all of
the forty inaccessible individual units into compliance with the
requirements of Section 804(f)(3)(C) of the Fair Housing Act, 42
U.S.C. §3604(f)(3)(C). By doing so, the remedy addresses the
current loss of those forty units to the supply of accessible units
in the Nation's housing market.
As the ALJ in Perland, 1998 WL 142149, n.44, observed in
approving a retrofitting remedy involving a condominium which had
been designed and constructed in violation of the Fair Housing Act,
"Retrofitting is recognized as an appropriate remedy for
noncompliance with statutory design and construction requirements."
Injunctive relief ordered under other federal statutes requiring
new construction to be designed and constructed in an accessible
manner has required retrofitting as a remedy. See e.g., Lieber v.
Macy's West, Inc., 1999 WL 989736, *19-20(N.D. Cal. 1999)(ADA, 42
U.S.C. §1283)(ordering Macy's, "[i]n those areas of the store that
are subject to new construction/alteration standards [under the
ADA], [to] bring all non-compliant entrances, counters, fitting
rooms, bridal registries, and other features used by customers into
compliance"); Ramirez v. Dist. of Columbia, 1999 U.S. Dist. LEXIS
15964 *8 (D.D.C. 1999)(ADA) (ordering the District of Columbia to
undertake "appropriate modifications" providing "barrier free access"
to a bathroom used by a mobility-impaired student);(22) Lara v.
Cinemark USA, Inc., 1999 WL 305108, *2 (W.D. Tex. 1999) (ADA)
(rejecting "good faith" defense and "having found that eighteen of
the twenty theater auditoriums do not comply with the requirements
of the Act and the regulations, [concluding that] it follows that
all eighteen must be modified"); Coalition of Montanans Concerned
with Disabilities, Inc. v. Gallatin Airport Auth., 957 F. Supp.
1166, 1168 (D. Mont. 1997) (holding plaintiffs "entitled" to
injunction to bring airport into compliance); and Deck v. City of
Toledo, 29 F. Supp. 2d 431, 434 (N.D. Oh. 1998) (holding that
plaintiffs were entitled to preliminary injunction requiring curb
ramp modifications so as to be in compliance with statutory
requirements under the ADA and the ADA accessibility guidelines).
In Perland, 1998 WL 142159, *15, the ALJ ordered the
respondents, who still controlled some of the common use and public
use areas of the condominium complex at issue, to "physically alter
all parts [of the complex] that Perland Corp. owns so that those
parts meet the [Fair Housing] Act's design and construction
requirements." It also ordered the establishment of a retrofit
fund to pay for the costs of retrofitting common areas and the
individual units not under the respondents' control, basing the
amounts in the fund on the approximate cost of completing the
retrofitting, Id., *15-16 and n.49,(23) as well as requiring
respondents to offer the owner of a noncompliant individual unit
$500 as an incentive to permit retrofitting. Id., *15.(24) Such
relief mirrors that proposed here, where plaintiffs' request for
the amount in the fund is based on the evidence of estimated
retrofitting costs and suggested owner incentives.
Factors such as costs should not militate against ordering the
equitable relief proposed by the plaintiffs. First, the violations
of the Fair Housing Act already found by this Court are in no sense
trivial,(25) and all covered multifamily housing must have the
prescribed features of accessibility. See pp. 13-17, supra.
Second, the parties responsible for the design and construction of
Lions Gate could have readily avoided any additional costs by
having designed and constructed the complex correctly in the first
instance. Perland, 1998 WL 142159, *n45 ("That retrofitting may be
much more expensive than had Respondents implemented the
accessibility requirements * * * [is] the possible consequence[] of
Respondent's discrimination.").(26) Accord: Rose v. United States
Postal Service, 774 F.2d 1355, 1361 (9th Cir. 1985) (rejecting
defendant's "argu[ment] that Congress [in enacting analogous
protections under the Architectural Barriers Act, 42 U.S.C. §§4141-4157] could not have intended to require retrofitting because of
the high costs" and noting that if the defendant had initially
complied with the law, "it would not now be required to retrofit").(27)
Third, requiring builders and designers to absorb the cost of
retrofits increases their incentives to comply with the
accessibility requirements in the first place.(28) Otherwise,
builders and designers will be tempted to ignore all or parts of
those requirements that they disagree with and then plead that it
will cost too much to correct the violation. Fourth, requiring
builders and designers to absorb such costs insures that those
costs will not later be borne by persons with disabilities, often
with limited resources,(29) who may desire to make their units
accessible in the manner prescribed by Congress. See 56 Fed. Reg.
9495 (Mar. 6, 1991) (preamble to HUD's "Final Accessibility
Guidelines") ("All costs associated with incorporating the new
design and construction requirements of the Fair Housing Act are
borne by the builder.")(emphasis supplied).(30)
Finally, in the present case, because the control of common
areas has passed on to LGGCI, it is appropriate -- if not
"imperative to afford full relief," Rommel Builders, 40 F. Supp.
at 712 -- to order LGGCI to permit the retrofitting of the
inaccessible common areas. As noted earlier (see p. 8, supra), a
court of equity may authorize relief against such third parties if
necessary to implement public policy. Here, the "policy of the
United States" is to provide for "fair housing." 42 U.S.C. § 3601.
To deny relief against LGCCI, whose control over the common areas
at Lions Gate holds the key to implementing an effective
retrofitting remedy, would, as this Court has already observed in
earlier proceedings, "result in a right without a remedy." Rommel
Builders, 40 F. Supp at 712.
- CONCLUSION
For these reasons, this Court should order equitable relief
insuring that the failure to design and construct the common areas
and individual units at Lions Gate is adequately remedied either
through retrofitting or an equivalent remedy which will make up for
the current loss of accessible units at that complex. LGGCI should
be ordered to permit all such necessary retrofitting.
Bill Lann Lee
Acting Assistant Attorney General
Civil Rights Division
Joan A. Magagna
Chief, Housing and Civil Enforcement Section
Brian F. Heffernon
Deputy Chief
Myron S. Lehtman
Attorney
Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
P.O. box 65998
Washington, D.C. 20035-5998
(202) 514-4738
Lynne A. Battaglia
United States Attorney
Perry Sekus
Assistant United States Attorney
101 West Lombard
Baltimore, MD 21201
(410) 962-4822
Assistant United States Attorney
1 The decision by the administrative law judge in HUD v. Perland
Corp., 1998 WL 142159 (HUD ALJ 05-96-1517-8, decided Mar. 30,
1998), is the only other reported case which has resulted in a
finding of liability and the imposition of a remedial order.
2 HUD has also been charged with providing technical assistance to
implement the requirements of Section 804(f)(3)(C), see 42 U.S.C.
§ 3604(f)(5)(C), and issuing rules to implement the Act. 42 U.S.C.
§ 3614a. To that end, HUD has issued regulations, 24 C.F.R.
§100.205, implementing the accessibility provisions of the Act, and
more detailed Fair Housing Accessibility Guidelines. See 56 Fed.
Reg. 9472 (Mar. 6, 1991).
3 As noted below (at pp. 5-7), plaintiffs seek damages, attorneys
fees, and equitable relief. Our brief addresses only the propriety
of equitable relief.
4 The United States has previously appeared in this litigation as
an amicus curiae. See Baltimore Neighborhoods, Inc. v. Rommel
Builders, Inc., 40 F. Supp. 700 (D. Md. 1999).
5 The plaintiffs also sued the architect of the project, Berkus
Group Architects, Inc. ("Berkus"). The Court entered a default
judgment against Berkus on July 30, 1997.
6 Plaintiffs did not allege any substantive violations of the Fair
Housing Act by LGGI.
7 Plaintiffs had also alleged that, in violation of 42 U.S.C.
§ 3604(f)(3)(C)(iii)(III), the bathrooms in the ground floor units
of Buildings 3-12 lacked reinforcements in their walls for the
later installation of grab bars. This Court concluded that a
disputed question of material fact existed as to that issue. 40 F.
Supp. at 714. It also concluded that a question of material fact
existed as to plaintiffs' claim under the American with
Disabilities Act, 42 U.S.C. § 12183(a)(1) ("ADA"), pertaining to
whether a model unit at the complex constituted a "sales or rental
establishment" within the meaning of 42 U.S.C. § 12181(7)(E). At
the hearing held in November 1999, this Court took further evidence
on both issues.
8 Shortly before the hearing, plaintiffs entered into an agreement
in principle to settle with defendants Rommel Builders and John
Rommel, although that agreement "has not yet been consummated nor
all of the details resolved." Plaintiff's Post-Trial Memorandum,
p. 21 ("Pl. Post-Tr. Memo").
9 See n.7, supra.
10 The sums sought for retrofitting include an estimate by
plaintiffs' expert of the costs of retrofitting the common areas
(i.e., inaccessible sidewalks, parking lots, and common foyers) at
Lions Gate and the costs of retrofitting the interiors of 40 ground
floor units, plus a $1,000 incentive to each unit owner to
encourage them permit the retrofitting. See Pl. Post-Trial Memo,
pp. 17-19. The United States assumes, for purposes of this brief,
that the evidence presented by plaintiffs at the remedy hearing
conforms to the representations made by them in their submission to
this Court regarding the costs and physical possibility of
undertaking the retrofitting. The monetary amounts sought against
LOB may eventually be reduced by the recovery obtained from
defendants Rommel Builders and John Rommel. As plaintiffs have
noted, "If, as anticipated, the [settlement agreement with Rommel
Builders and John Rommel] provides a join tortfeasor release to the
settling defendants, it would be appropriate to reduce certain
aspects of the award against LOB * * *." Pl. Post-Trial Memo, p.
21.
11 Section 813(d) of the Act, 42 U.S.C. § 3613(d), provides that
the relief granted "shall not affect any contract, sale,
encumbrance, or lease consummated before the granting of such
relief and involving a bona fide purchaser, encumbrancer, or
tenant, without actual notice of the filing of a * * * civil
action" under the Act. This Court has held that the section should
be read "narrowly" and does not preclude an order providing for
"retrofitting relief to common areas while being mindful that the
least intrusive remedies must be employed when possible." Rommel
Builders, 40 F. Supp. at 712. The ALJ in Perland, 1998 WL 142159
at *11, came to a similar conclusion regarding the effect of an
analogous provision of the Act applicable to administrative
proceedings (see 42 U.S.C. §3612(g)(4)):
[T]he fact that Perland Corp. no longer owns the
common areas and one ground-floor unit at Building
one does not relieve Respondents of their liability
for violating the Act and of the need to provide a
remedy for that violation. Rather, it simply
requires that the relief afforded be crafted in
such a way so as to not affect the transfer of
ownership of those common areas and that unit.
12 In its earlier opinion in this case, this Court has already
recognized that it may be necessary to include LGGCI as a party
necessary for relief, even though the plaintiffs made no
substantive claim against the association. Rommel Builders, 40 F.
Supp. at 711-12.
13 See also Capitol City Lodge No. 74, 477 F.2d at 602, where the
Court of Appeals for this Circuit commented that, in the face of a
finding of racial discrimination, the failure of the district court
to order "affirmative relief" in addition to granting a prohibitory
order was "reminiscent of the mother who gave her daughter
permission to go swimming but in the same breath admonished her not
to go near the water."
14 Accord: Gadsby v. Grasmick, 109 F.3d 940, 953-54 (4th Cir. 1997)
(noting that "the remedy of reimbursement for private school
tuition is an equitable remedy imposed at the discretion of the
district court and held to be appropriate by the Supreme Court in
Burlington * * * [even though] there is no statutory language
specifically authorizing such a remedy").
15 The Supreme Court has offered similar instruction:
When Congress entrusts to an equity court the
enforcement of prohibitions contained in a regu-latory enactment, it must be taken to have acted
cognizant of the historic power of equity to
provide complete relief in the light of statutory
purposes. As this Court long ago recognized, "there
is inherent in the Courts of Equity a jurisdiction
to * * * give effect to the policy of the
legislature."
Mitchell v. Robert de Mario Jewelry, Inc., 351 U.S. 288, 335
(1960).
16 For instance, a single family home would clearly not fall within
the definition of "covered multifamily dwellings" set forth at 42
U.S.C. §3604(f)(7).
17 Units in Building 1 and 2 were occupied prior to the effective
date of the Act and, hence, were not covered by its mandate or by
plaintiffs' complaint. Rommel Builders, 40 F. Supp. at 708.
18 In its implementing regulations (see 24 C.F.R. §100.205(a) and
(c)), however, HUD has provided a narrow exception "applicable to
those instances in which the terrain or other unusual
characteristics of the site make it impractical to provide at least
one building entrance on an accessible route." Perland, 1998 WL
142159 *8. This Court has previously rejected application of that
regulatory exemption to the facts of this case. Rommel Builders, 40
F. Supp. at 706.
19 Congress also had help in its consideration. As Senator Harkin,
one of the proponents of the bill, noted in the debate on it:
These provisions are the result of lengthy
negotiations between the disability community and
architects, builders, and managers to achieve a
reasonable balance between meeting the intent of
the bill, to assure equal opportunity in housing
for individuals with handicaps, while minimizing
both construction costs and potential issues of
marketability.
134 Cong. Rec. S10464 (Remarks of Senator Harkin)(Aug. 1, 1988).
And as emphasized by Representative Schumer, another supporter of
the bill, "the carefully crafted compromise between the relevant
groups * * * strikes the correct balance between the needs of the
handicapped and the costs to society of accommodating these
individuals." 134 Cong. Rec. H4898-04 (Jun. 29, 1988)(Remarks of
Rep. Schumer).
20 The House overwhelmingly rejected the amendment by a vote of 330
to 78. 134 Cong. Rec. H4898-04, 1988 WL 173277, *23 (Jun. 29,
1988).
21 See 134 Cong. Rec. S10532-04, 1998 WL 174367 *39 (Aug. 2, 1988)
(Statement of Senator Humphrey)("I am going to offer an amendment
that will modify this bill so that it applies to 20 percent; that
is the handicapped provisions, the design and building provisions
will apply to 20 percent of the units or in the case of multiple
building units, 20 percent of the buildings. Twenty percent of the
units would have to be designed and built to accommodate the
handicapped, including those who are confined to a wheelchair.").
The Senate rejected the proposal by a vote of 84-12. Id., at *70.
22 The Court in Ramirez had found that bathroom doorways were "too
narrow to allow for the passage of a wheelchair and the bathrooms
were never equipped with the ADA-required modifications." 1999
U.S. Dist. LEXIS 15964, *3. The Court noted the chilling
consequences of noncompliance on the mobility-impaired student:
Because the bathroom door was not wide enough for
his wheelchair, he was forced to crawl across the
bathroom floor in order to use the toilet. Often,
after using the toilet, he would crawl across the
floor to the sink to wash his hands, and then crawl
on his hands and knees back to his wheelchair.
Id.
23 In ordering the establishment of a retrofit fund, the ALJ noted
that the United States had obtained such relief in a consent decree
resolving analogous allegations. Id., citing United States v. A.T.
Maras Co., Inc., Civ. No. 97 C 8176 (N.D. Ill. Dec. 8, 1997).
24 The offering of such an incentive program is analogous to
"magnet" programs offered as an equitable remedy in school
desegregation cases. See p. 9, supra, and Davis v. East Baton
Rouge Parish School Bd., 721 F.2d 1425, 1438 (5th Cir. 1983) ("[U]se
of special programs designed to make the desegregated schools more
attractive to students and parents and thereby minimize white
flight is entirely appropriate as long as the cause of
desegregation is not frustrated").
25 Recently, Judge Murnaghan of the Court of Appeals for this
Circuit, in a case under the ADA, noted the following:
On several occasions in its argument the Appellees
pointed out that the ADA often mandates changes
based on differences of only a few inches -- e.g.,
in the width of a door frame or in the height of a
toilet seat. * * * Appellees are correct; often
the difference between accommodating the disabled
and leaving them segregated and excluded is only a
difference of a few inches. But, for the disabled,
"almost" is not good enough. From the perspective
of a disabled American, the absence of these
accommodations in a building, a hallway, a bathroom
* * * is tantamount to a sign that says, "No
disabled allowed." A * * * failure to consider
these necessary and often minor accommodations when
designing buildings * * * is invidious
discrimination in a most pernicious form -- willful
blindness. * * *
But this deliberate ignorance is unreasonable and
irrational. The disabled are as much a part of
society as those of us fortunate enough not to be
challenged. The need to have a ramp for a building
and accessible toilets and showers is as evident as
the need to have doors and bathrooms in the first
place.
Amos v. Maryland Dept. of Public Safety and Correctional Services,
178 F.3d 212, 223 (4th Cir. 1999)(Murnaghan, J., concurring).
26 The minimal costs of building new housing with the accessibility
features in the first instance was not lost on the proponents of
the legislation in Congress:
Mr. President, basically, what we have to
understand is that it is cheaper to make housing
available and accessible to the handicapped when it
is being constructed rather than making
modifications later on. This deals with future
construction in the circumstances covered by the
bill.
As we have pointed out, what does it cost to
ensure that a doorway is open for a wheelchair?
What does it cost to put light switches at a level
that will be available to people in wheelchairs?
That is what we are talking about in this
particular legislation. It is simple but
essential.
134 Cong. Rec. S10536 (Aug. 2, 1988); 1988 WL 174367, at *44-45(Cong. Rec)(statement of Sen. Kennedy).
27 See also Florence County Sch. Dist Four v. Carter, 510 U.S. 7,
15 (1993), where the Supreme Court, in a case under the Individuals
with Disabilities Act, 20 U.S.C. §§ 1400-1485, rejected the school
district's argument that permitting reimbursement to parents for
the costs of private education of a child placed an unreasonable
burden on financially strapped local education agencies: "This is
IDEA's mandate, and school officials who conform to it need not
worry about reimbursement claims."
28 See Albermarle Paper Co., 422 U.S. at 417 ("If employers faced
only the prospect of an injunctive order, they would have little
incentive to shun practices of dubious legality.").
29 For instance a 1997 report issued by the National Council on
Disability stated that "[w]ithin the working population, the Census
data showed an association between the present of a disability and
lower earnings * * *." National Council on Disability, "National
Disability Policy: A Progress Report," p. 5 (Oct. 31, 1997),
available on the internet at: http://www.ncd.gov/publications/
policy.html#2a. In addition, the accessibility requirements of the
Fair Housing Act had been "endorsed by the National Low Income
Housing Coalition" at the time they were being considered by
Congress. See 134 Cong. Rec. H4898-04 (Jun. 29, 1988) (Remarks of
Rep. Schumer).
30 As the agency charged by Congress with implementation of the
Fair Housing Act (see n.2, supra), HUD's views are entitled to
deference. See Nationwide Mutual Ins. Co. v. Cisneros, 52 F.3d
1351, 1358 (6th Cir. 1995), cert. denied, 516 U.S. 1140 (1997)
(construing the Fair Housing Act consistent with HUD regulations).
