IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
KENNA HOMES COOPERATIVE
____________________________________)CONSENT DECREE AND DISMISSAL ORDER
This Consent Decree settles litigation instituted by the United States by its complaint, filed concurrently with this Decree, on behalf of Athalee Prince, to enforce the provisions of the Fair Housing Act, 42 U.S.C. §§ 3601-3619, 3631. In its complaint the United States alleges that defendant Kenna Homes Cooperative Corporation ("KHCC") violated the Act by, inter alia, refusing to make a reasonable accommodation for Ms. Prince, a handicapped person who suffers from a mental and emotional disability. Specifically, the complaint alleges that KHCC failed to permit Ms. Prince to keep an animal in her apartment at Kenna Homes because she failed to comply with a rule requiring the animal to be trained and certified, as well as authorized by a physician specializing in her particular disability. KHCC denies that it has violated the law as alleged by the United States. KHCC avers that it has been their intent for years to effectuate the wishes of a majority of their stockholders by prohibiting pets to the greatest degree practicable within the bounds of all requirements, including the Fair Housing Act.
On April 17, 2002, Ms. Prince filed with the Department of Housing and Urban Development ("HUD") a timely complaint pursuant to section 810(a) of the Fair Housing Act, as amended, 42 U.S.C. § 3610(a), alleging discrimination on the basis of disability. Following an investigation, HUD issued a finding of reasonable cause. On March 8, 2004, a timely election was made by the respondent under 42 U.S.C. § 3612(a) and the complaint was referred to the Department of Justice to commence a civil action in Federal district court pursuant to 42 U.S.C. § 3612(o)(1).
KHCC and the United States agree, in order to avoid costly and protracted litigation, that the claims against KHCC should be resolved without an evidentiary hearing. The parties also agree that nothing in this decree should be construed as an admission of liability by KHCC. Accordingly, the parties have agreed to the entry of this consent decree, subject to approval and entry by the Court.
It is hereby ORDERED, ADJUDGED, and DECREED:
MODIFICATION OF RULES
1. KHCC shall adopt at its next regular board meeting, but in no event more than forty-five (45) days after the entry of this decree, an exception to any rule or practice that restricts the keeping of animals by residents of Kenna Homes, which exception shall permit residents with disabilities, (1) as defined in section 802(h) of the Act, 42 U.S.C. § 3602(h), to keep service animals or emotional support animals.
- For the purposes of this section,
- An "emotional support animal" means an animal the presence of which ameliorates the effects of a mental or emotional disability,
- A "service animal" means an animal that does work or performs tasks for the benefit of a person with a disability,
- A "licensed mental health professional" means a person licensed by a public regulatory authority to provide therapy or counseling to persons with mental or emotional disabilities, and
- An "applicant" means either a current resident of Kenna Homes or an applicant for ownership or residence at Kenna Homes who wishes to keep a service or emotional-support animal at Kenna Homes.
- The exception may be conditioned upon compliance with the following requirements:
- That the applicant have requested such an exception based on his or her disability,
- That the applicant designate the animal by species and breed, e.g., "Yorkshire Terrier," "Siamese cat," "mixed-breed dog (or cat)," or "parakeet,"
- That the animal be kept clean, healthy, and under the control of the applicant,
- That the applicant clean up after the animal both in his or her residence and in the common areas of Kenna Homes,
- That the animal not constitute a threat to the safety of others,
- That the animal not make excessive noise,
- That the animal, when not in an apartment, be kept on a leash or in a carrier or cage,
- In the case of an emotional support animal, that the need for an animal be documented by a statement from a licensed mental health professional indicating,
- that the applicant has a mental or emotional disability, and
- that the designated animal would ameliorate the effects of the disability, or
- In the case of a service animal, that the applicant provide information indicating,
- that the animal has been individually trained to do work or perform tasks for the benefit of an individual with a disability, or
- that the animal, despite lack of individual training, is able to do work or perform tasks for the benefit of an individual with a disability.
- This exception may be not conditioned upon compliance with any of the following requirements:
- In the case of an emotional support animal, that the animal have been trained or have a certification of its efficacy, or
- That the applicant pay any fee, deposit, or other charge for keeping the animal.
2. KHCC shall, no later than ten days after adoption, notify in writing each resident of Kenna Homes of the adoption and implementation of the exception referred to in paragraph one, above.
NOTIFICATIONS TO THE UNITED STATES
3. KHCC shall, for the duration of this decree and no later than ten days after their occurrence, give notice and documentation to the United States (2) of the occurrence of any of these events:
- The adoption of the exception referred to in paragraph one, above, to be documented by a complete statement of the rules and regulations of KHCC showing the exception in context,
- The written notifications of Kenna Homes residents required in paragraph two, above,
- Any change in KHCC's rules or practices affecting the keeping of animals by residents of Kenna Homes, or
- Any denial by KHCC of a request by an applicant to keep an animal at Kenna Homes pursuant to the exception referred to in paragraph one, above, to be documented by all documents pertaining to the request in the possession of KHCC, whether created by KHCC or received from such applicant or other parties, but from which documents may be redacted such applicant's identifying information, such as name and address. In the event that the United States, after review of the submitted documentation, deems it necessary for enforcement purposes to learn the identity of any such applicant, the United States may apply to this Court to authorize disclosure by KHCC to the United States of such information.
4. For the duration of this decree KHCC shall preserve all records relating to a) complaints against it or its agents or employees of discrimination in housing on the basis of handicap, and b) its receipt and processing of requests for reasonable accommodation of animals. Upon reasonable notice to KHCC, the United States Department of Justice shall be permitted to inspect and copy any of KHCC's records relating to KHCC's compliance with the terms of this decree, provided, however, that the United States Department of Justice shall endeavor to minimize any inconvenience and administrative burden to the KHCC from such inspections.
TERM OF DECREE AND OTHER PROVISIONS
5. This consent decree shall remain in effect for three years after the date of its entry. The Court retains jurisdiction over the action for the duration of this consent decree for the purpose of enforcing any of its provisions and terms.
6. Each party to this decree shall bear its own costs and attorney's fees associated with this litigation.
7. The Court orders that this civil action shall be retired and stricken from the docket of this Court. The Court, however, shall retain jurisdiction for the term of this Consent Order to enforce the terms of the Order.
8. The parties and their attorneys shall work cooperatively with one another and in good faith to resolve informally any differences regarding interpretation of and compliance with the decree prior to bringing such matters to the Court for resolution.
FOR PLAINTIFF UNITED STATES:
United States Attorney
FRED B. WESTFALL, JR.
Assistant U.S. Attorney
Office of the U.S. Attorney
Southern District of West Virginia
Post Office Box 1713
Charleston, West Virginia 25326
R. ALEXANDER ACOSTA
Assistant Attorney General
STEVEN H. ROSENBAUM
Chief, Housing and Civil Enforcement Section
MICHAEL S. MAURER
HOWARD R. GRIFFIN
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
The Northwestern Building
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
LARRY G. KOPELMAN
Attorney for Kenna Homes Coop. Corp.
Kopelman and Associates, L.C.
Nine Pennsylvania Avenue
Charleston, West Virginia 25302
ORDERED this day of, 2004.
United States District Court Judge
Southern District of West Virginia
1. Although the Act refers to the protected class as persons with "handicaps," the term "disabilities" is synonymous and generally preferred. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
2. All notifications and documentation required under this decree to be sent to the United States shall be addressed to "Chief, Housing and Civil Enforcement Section," and shall be delivered both by fax to 202-514-1116, and by USPS first-class mail to United States Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, The Northwestern Building, 950 Pennsylvania Avenue NW, Washington, D.C. 20530.
Document Entered: August 10, 2004 > >