Housing And Civil Enforcement Cases 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
  1. INTEREST OF THE UNITED STATES
  2. BACKGROUND AND LIABILITY FINDINGS
  3. THE RELIEF SOUGHT BY PLAINTIFFS
  4. ARGUMENT
    1. STANDARD FOR RELIEF UNDER THE FAIR HOUSING ACT
      1. Statutory Provision Authorizing Relief
      2. Equitable Relief Under the Fair Housing Act
    2. PLAINTIFFS' PROPOSED EQUITABLE RELIEF CONSTITUTES APPROPRIATE RELIEF UNDER THE FAIR HOUSING ACT
  5. CONCLUSION

TABLE OF AUTHORITIES
  • CASES:
    • Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975)
    • Amos v. Maryland Dept. of Public Safety and Correctional Services, 178 F.3d 212 (4th Cir. 1999)
    • Baltimore Neighborhoods, Inc. v. Rommel Builders, Inc., 40 F. Supp. 700 (D. Md. 1999)
    • Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995)
    • Coalition of Montanans Concerned with Disabilities, Inc. v. Gallatin Airport Auth., 957 F. Supp. 1166(D. Mont. 1997)
    • City of Edmonds v. Oxford House, Inc., 514 U.S. 725 1995)
    • Davis v. East Baton Rouge Parish School Bd., 721 F. 2d 1425 (5th Cir. 1983)
    • Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Oh. 1998)
    • Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993)
    • Gadsby v. Grasmick, 109 F.3d 940 (4th Cir. 1997)
    • HUD v. Perland Corp.. 1998 WL 142159 (HUD ALJ 05-96-1517-8) (Mar. 30, 1998)
    • Johnson v. Capitol City Lodge No. 74, Fraternal Order of Police, 477 F. 2d 601 (4th Cir. 1973)
    • Lara v. Cinemark USA, Inc., 1999 WL 305108 (W.D. Tex. 1999)
    • Lieber v. Macy's West, Inc., 1999 WL 989736 (N.D. Cal. 1999)
    • Local 28 Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986)
    • Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 469 F. Supp. 836 (N.D. Ill. 1979), aff'd 616 F.2d 1006 (7th Cir. 1980)
    • Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006 (7th Cir. 1980)
    • Milliken v. Bradley, 433 U.S. 267 (1977)
    • Mitchell v. Robert de Mario Jewelry, Inc., 351 U.S. 288 (1960)
    • Nationwide Mutual Ins. Co. v. Cisneros, 52 F.3d 1351 (6th Cir. 1995), cert. denied, 516 U.S. 1140 (1997)
    • Park View Heights v. City of Black Jack, 605 F.2d 1033 (8th Cir. 1979), cert. denied, 445 U.S. 905 (1980)
    • Porter v. Warner Holding Co., 328 U.S. 395 (1946)
    • Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3rd Cir. 1990), cert. denied sub nom, Powell Duffryn Terminals, Inc. v. Public Interest Research Group of N.J.., 498 U.S. 1109 (1991)
    • Ramirez v. Dist. of Columbia, 1999 U.S. Dist. LEXIS 15964 (D.D.C. 1999)
    • Rose v. United States Postal Service, 774 F.2d 1355 (9th 1985)
    • School Committee of the Town of Bulington v. Dept. of Educ., 471 U.S. 359 (1996)
    • Smith v. Town of Clarkton, 843 682 F.2d 1055, 1068 (4th Cir. 1982)
    • Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972)
    • TVA v. Hill, 437 U.S. 153 (1978)
    • United States v. Coca-Cola Bottling Co. of Los Angeles, 575 F.2d 222 (9th Cir. 1978), cert. denied by, Aqua Media Ltd. v. United States, 439 U.S. 959 (1978)
    • United States v. Warwick Mobile Homes Estates, 558 F.2d 194 4th Cir. 1977)
    • Walker v. Crigler, 976 F.2d 900 (4th Cir. 1992)
    • Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
  • FEDERAL STATUTES:
    • 16 U.S.C. § 1531 et seq.
    • 20 U.S.C. § 1415(e)
    • 42 U.S.C. § 12181(7)(E)
    • 42 U.S.C. § 12183(a)(1)
    • 42 U.S.C. § 3601
    • 42 U.S.C. § 3601-19
    • 42 U.S.C. § 3604(f)(3)(A)
    • 42 U.S.C. § 3604(f)(3)(C)
    • 42 U.S.C. § 3604(f)(3)(C)(iii)(III)
    • 42 U.S.C. § 3604(f)(5)(C)
    • 42 U.S.C. § 3604(f)(7)
    • 42 U.S.C. § 3604(f)(7)(B)
    • 42 U.S.C. § 3612(g)(4)
    • 42 U.S.C. § 3612(o)
    • 42 U.S.C. § 3613(c)
    • 42 U.S.C. § 3613 (d)
    • 42 U.S.C. § 3614a
    • 42 U.S.C. § 3614(a)
    • 42 U.S.C. §§ 4141-4157
    • Pub. L. No. 100-430
  • FEDERAL RULES OF CIVIL PROCEDURE
    • Rule 19(a)
  • FEDERAL REGULATIONS:
    • 24 C.F.R. §100.205
    • 24 C.F.R. §100.205(a) and (c)
    • 56 Fed. Reg. 9472 (Mar. 6, 1991)
    • 56 Fed. Reg. 9495 (Mar. 6, 1991)
  • CONGRESSIONAL MATERIALS:
    • H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 2173
    • 134 Cong. Rec. H4898-04 (Jun. 29, 1988)
    • 134 Cong. Rec. H4898 (Jun. 29, 1988); 1988 WL 173277
    • 134 Cong. Rec. S10464 (Aug. 1, 1988)
    • 134 Cong. Rec. S10532-04 (Aug. 2, 1988); 1988 WL 174367
    • 134 Cong. Rec. S10536 (Aug. 2, 1988), 1988 WL 174367
    • 134 Cong. Rec. S10539 (Aug. 2, 1988); 1988 WL 174367
    • 134 Cong. Rec. S10544-02 (Aug. 2, 1988); 1988 WL 174369
  • MISCELLANEOUS:
    • 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.
  • ATTACHMENTS:

    Administrative Law Decisions and Federal Cases Not Appearing in the Federal Reporters:

    • HUD v. Perland Corp., 1998 WL 142159 (HUD ALJ 05-96-1517-8) (Mar. 30, 1998)
    • Lara v. Cinemark USA, Inc., 1999 WL 305108 (W.D. Tex. 1999)
    • Lieber v. Macy's West, Inc., 1999 WL 989736 (N.D. Cal. 1999)
    • Ramirez v. Dist. of Columbia, 1999 U.S. Dist. LEXIS 15964 (D.D.C. 1999)

  1. 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)

  2. 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.

  3. 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)

  4. ARGUMENT

    1. STANDARD FOR RELIEF UNDER THE FAIR HOUSING ACT
      1. 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)

      2. 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.

    2. 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.

  5. 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). > >

Updated August 6, 2015

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