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,
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
