Transcript
Peter Berg
All right. Welcome everyone. Thank you for the introduction there Sydney and welcome to the September ADA audio conference session. This is a final session in the 2018-2019 season of the ADA audio conference series, which is the longest educational program of the ADA National Network, the ADA National Network is the leader in providing information on the Americans with Disabilities Act, there are ten regional ADA centers around the country. You can find the center that serves your state by visiting ADATA.org or calling 800-949-4232 to connect with your regional ADA center. The ADA National Network is funded by the U.S. Department of Health and Human Services, administration on community living, National Institute on Disability, independent living and rehabilitation research. With that, we are pleased to have with us Amanda Motyka, who is with the U.S. Department of Housing and Urban Development and while the focus of the national network is on the ADA, we also get a good number of questions regarding The Fair Housing Act and the rights of people with disabilities, when it comes to housing, what are the rights of people with disabilities, what are the obligations of housing providers, homeowners association, condo associations, when it comes to people with disabilities. We are pleased that Amanda has joined us today. Amanda Motyka is the equal opportunity specialist with the U.S. Department of Housing and Urban Development here in the Chicago office. Amanda joined us a few years back to do a session that we did specifically on service and assistance animals, that topic I'm sure will come up today during her presentation. As a quick reminder for those of you in the webinar room, you can't see the questions while Amanda is speaking. Even though you can't see those questions, when you submit them, they are viewable by us on this end. We will get to those questions once Amanda has worked through her presentation. Today's session is being recorded. That is enough from me. Amanda, thank you very much for joining us today, and we are looking forward to all the great information that you have to share with us. Welcome.
AMANDA MOTYKA
Thank you. Thanks for having me, Peter. I appreciate it.
As Peter said, I've been working for the department of Fair Housing and equal opportunity now for about four years, prior to that I was in housing working for the Chicago housing authority for approximately 11 years, doing disability work there as well. So I wanted to take a real brief moment to acknowledge how I got into working with people with disabilities, and I think a lot of people would maybe have the same story, and that kind of center around Marca Bristo who I met in 2005 when I started working with the Chicago housing that's right, upon her death last week, it made me reflect back about her impact on the country, and accessibility and her dedication to disability justice, which I think we all will never forget. So with that, I wanted to take you through fair housing and how it affects people with disabilities. We will dig a little background about what exactly we are talking about when we talk about Fair Housing.
I found this definition, and I think it is pretty relevant. There are so many definitions for what Fair Housing is, but it's basically the right for all people to live where they choose, to have access to housing, seek, purchase selling or renting it and to enjoy the full use of their homes without unlawful discrimination, interference, coercion, threats, or intimidation by owners, landlords, real estate agents or any other persons.
Fair Housing to me is the assurance that anyone retains their agency over their own choices on where to call home. The beginnings of Fair Housing, we can go back to the late 1960s, right after the assassination of President Kennedy, we had of course President Johnson take over, and later on, it is a weird time in America. There's upheaval and riots, so President Johnson convened what came to be called the Kerner commission, to investigate why the entire country seemed to be rioting and in a state of upheaval.
From our history we know there were race riots in Detroit, watts Watts and Los Angeles and unrest and violence in Chicago and New Jersey.
What the Kerner commission summed up in their research was what the state of the country was to them, and that was that our nation is moving towards two societies, one Black, one White, separate and unequal. There began to be a push for legislation to stop such riots from occurring. Everyone started lobbying around the Fair Housing Act, which wasn't getting much support until unfortunately, the assassination of Dr. Martin Luther King Junior, in 1968. What we did get from the Fair Housing Act is one of the most aggressive and powerful civil rights laws that we have, even currently in the country. They are unique, their unique language requiring HUD and the governments, HUD and government recipients of HUD money to affirm their belief in Fair Housing. This has become controversial because we no longer are looking at what we have done a couple years ago with affirmative housing plans and things like that. But essentially what affirmatively Fair Housing it is never status quo, we are always looking towards how to integrate and desegregate neighborhoods in the United States.
At the time, that it was passed, there were only a few classes that were covered, race and color, national origin, religion, and then later on sex was actually added I believe in 1974. The Fair Housing amendment act of 1988 is basically what we are going to talk about today, so that added protections for people with disabilities and family with children, which you will hear phrase is familial status in the sale or rental of housing. We quickly saw disability surpass race as the most frequently cited protected class in HUD complaints, up until when it first was enacted, a lot of the Fair Housing Act complaints were strictly race related. Then in 2007, as the slide says, we will see disability almost become 60 percent of the cases that we will see. A person is disabled if he or she has a physical or mental impairment, a record of such an impairment, and if that impairment substantially limits one or more major life activities. This includes people who use wheelchairs or other kind of mobility aids, people who use glasses and other things that kind of mitigate these disabilities, and people who are hearing or visually impaired, also people who have HIV AIDS, and this I would say is , more, recent and people who are obese. It is not just that you are physically obese, it's that you have disabilities that stem from obesity. People in recovery from alcohol or drug abuse are also covered, but not active users.
What I included in this slide, and you can use, moving forward, if you would like, it's not working today, but is one of the commercials that Fair Housing had created, and in the short video, kind of will show there was a tenant who was looking to rent an apartment, who seemed to be perfect, on paper, good credit score, referrals from landlords and things like that, and then and it's a white male, and then he kind of morphed into different classes, so a Latinx person, African-American, a woman with children, and a man using a wheelchair. Important to kind of see that discrimination is insidious, oftentimes there is not going to be, we hardly ever see overt discrimination. Likely no one is going to tell you when you go to rent an apartment that, no, you are in a wheelchair, I'm not renting to you. But they may find and sometimes find other things to say and other reasons why they are not going to rent the apartment to you.
An interesting thing too that we have seen kind of disappointingly, we find that discrimination now happens even by phone, and even through E-mails. Someone, a landlord that you are looking to rent from may stereotype a voice that they hear, and they also look at E-mails that are sent, and pick up things about maybe your E-mail name, so if your E-mail address has something, either that would denote your race or your sex or something like that, we see sometimes that that is used to discriminate persons that are looking to rent housing or buy housing.
Okay. So like I said, the protected classes for the Fair Housing Act, and these are very different from what you hear state and locally protected. We take complaints that are race, color, sex, religion, national origin disability and familial status based. There has been kind of an influx of states that have added upon that. For instance, in the slide that I have now, this is talking about Illinois, and you see the inclusion of sexual orientation, ancestry, marital status, order of protection, things like this. Even in the City of Chicago, they recently did source of income, which was important because we have a lot of users of section 8 vouchers. One thing that we will discuss later is restrictions on filing complaints, if you feel you have been discriminated against, and that is what the deadlines at the bottom are talking about. You have one year to file with HUD, and 180 days for some of the other things, as you can see under the deadlines. IDHR, Illinois Department of Human Rights here in Illinois, and you may have that if you are in different states, you may have what we call substantially equivalent agencies that maybe like Ohio Department of Human Rights, things like that, and they actually, we call complaints under Fair Housing are, it's a Title 8 complaint, if you have ever heard that. And under that statute, we can refer those to these agencies to actually investigate for us.
I hope that wasn't too much information to throw at you at one time.
Peter Berg
Amanda, if you can give a heads up of the slide number you are working on, please.
AMANDA MOTYKA
Sorry. I changed to slide 17, talking about, what someone can't do to you, and this is based on your protected class. We were talking about the Fair Housing Act, we will get somebody refusing to sell or rent a dwelling, refusing to negotiate for the sale or rental, discriminating in the terms, conditions, or privileges of the sale or rental. Sometimes these things, maybe we need to go into further, but we are talking about different terms and conditions, it could be a whole lot of things. One would be maybe requesting a larger deposit for somebody who comes in using a wheelchair, on the assumption that there may be more wear and tear to a unit. Things like this are completely illegal, but that's some of the things that landlords sometimes feel like they can do.
Then also discriminating in the services or facilities in connection with the sale or rental of a dwelling. On slide 18, we talk about what else, what else can't, is illegal to do, under the Fair Housing Act. Making, printing or publishing, advertisements that indicate a preference, limitation or discrimination, so looking for people who are under a certain age, or singles only, so no children, things like that. We have seen kind of uptick in discriminating in lending or appraisals. We are back where we were, unfortunately in 2008, 2009 with some of the loans that are being offered to people of color and other protected classes.
Also misrepresenting the availability of a property, so again like I was saying, if someone calls and for lack of a better word sound White, and I say sure, it's available, why don't you come over tomorrow and look at it, but I have my friend who is Black call, and they say, no, sorry, that's been rented.
Steering, we see this sometimes with real estate agents who tell people, you may be more comfortable near X, instead of where you actually are looking to rent or buy a property.
Also a big one, refusing to allow reasonable accommodation or modification for people with disabilities, and then looking at when somebody has exercised their right for Fair Housing, retaliation once somebody is notified that there's been a complaint filed.
Like everything, on slide 19, there are some exemptions from the Fair Housing Act. They are very limited. You see that in small owner occupied buildings, so if I own a two-flat and I'm living there, these rules may not apply to you. Individuals who own three single-family homes or less than, or less at any one time, we get questions all the time about senior housing, so we actually at HUD, when I say we, I'm sorry, HUD can designate a property as 62 and older, or 55 and older, and there are restrictions on how many families they can rent to that are within that age group, so but what we are talking about is, say I rent the unit to somebody who is 62, but they have, maybe they have custody of their grandchild. There are protections for that family. So although I have to rent to families that contain somebody that are 62 and older or 55 and older, if they are coming with people who are under that age limit, then I cannot discriminate and say that they can't live in the senior housing. Things we see less of but that were at one time popular were religious organizations, that you had to be of a certain religion to live on certain properties, and again kind of a disclaimer, the laws differ, and also if you have any questions about, if it's applicable, you can always contact HUD to see if that is one of the exemptions that you are dealing with. On slide 20, a big thing that happened, FHEO successfully sued Facebook in 2019 -- FHEO. I'm not sure if everyone is aware, I'm sure we all maybe against our better judgment have Facebook accounts. What they were doing was things I had spoken about, they had ads on there that were looking for people of a certain type, and just outright discriminatory, were on Facebook. Ultimately Facebook was found liable because they were permitting that discriminatory ads to be posted. What I thought was interesting, going over this case, is it's been proven that if you open up a Facebook account within 60 clicks of likes or just visiting different sites, that site, they can tell nearly everything about you. We are talking down to emotional stability, whether or not you are an alcoholic, things like this. Like there is a lot of things that can be, that Facebook can find. If you were feeling at all bad for them being sued, maybe that will cause you to reconsider. (Chuckles).
But what we are talking about generally in advertising is a lot of times before the add vent of the Internet -- advent of the Internet there were print ads, publishing ad that indicated a preference, limitation or had difficulties discriminatory language based on a protected class. This applies to individuals or large multifamily housing entities that are placing ads in papers or on Facebook, things like that. Advertising agencies that are preparing ads, and then as I said, newspapers and social media that are actually publishing the ads.
This is an example of something that may look kind of innocent, if you are coming across it on Facebook or in a newspaper. But we have an apartment for rent, they do say couples preferred, two bedroom, two bath, 1,500-dollar a month, living room has a fireplace, master bedroom, walk in closet, second bedroom, makes for a great office. Hardwood floors, located in a quiet 10 story building, walking distance to brown line, historical architecture requiring neat renters who will maintain unit's appearance. I know we are not interactive. But I'm wondering how many of you are saying that possibly yes, this could be illegal.
And it is. There is a lot of phrases and language here that could be seen as discriminatory. A phrase like couples preferred could be marital status, something like that, and maybe that is covered by your state or your local government or its quiet, often means that children are not wanted in the unit. Using rooms as an office, instead of a second bedroom, kind of made a note that children are not wanted in the building that could be a familial status claim. The last two sentences, I tweaked to maybe discuss for people with disabilities, so saying walking distance to a Brown line, and it kind of, these little things that maybe hint that they are looking for somebody that is not disabled. Historical architecture, neat renters, maybe people are thinking I don't want you damaging walls, or floors, or tend to note that I'm not interested in making any modifications to this walk up, you know, so maybe you need not apply if you are a person with a disability.
Some of the protections for people with disabilities, I'm sure everybody is aware of, the landlord that we are talking about must allow reasonable accommodations, and we have heard reasonable accommodations versus reasonable modifications. Accommodations are talking about rules, policies, practices or services, so a big one that we will talk about later too is support animals that are allowed in a building which typically does not allow pets. Then we have reasonable modifications that persons with disabilities should be allowed to make these modifications to their unit and/or common areas, so that they can use the housing. We see things like installing a ramp that wasn't there, grab bars in a bathroom, removing sink cabinets or a cabinet, either in the bathroom or kitchen, enlarging doorways, maybe installing signage, things like that.
The type of housing as we will get into, too, depend on who is paying for the modifications. I switched to slide 23.
We are talking today about the Fair Housing Act, but there are additional protections for people with disabilities. So if you are living in public housing or housing that somehow subsidized by the federal government, while it's covered by the Fair Housing Act it's also covered by section 504, and ADA. If a landlord is somehow receiving federal assistance, as we said, maybe this is directly to a housing authority or the housing authority or multifamily housing, things like that, they are then required to make and pay for reasonable modifications to the common areas and the units for a person with a disability.
Privately, that is not the case. If you are renting from somebody, they don't have to pay for your modification. But if it's reasonable, they do have to allow you or whomever you are getting the money from, maybe it's a grant or another government entity that is coming and making the modifications, they have to allow those modifications to take place.
So getting into that, going off on the modification route first, there are accessibility guidelines that are attached to the Fair Housing Act. Those started and are applicable to new buildings with four or more units, and this is sometimes, this will get us when we are looking into things in larger cities that are older, but the date of first occupancy has to be on or after March 13 of '91.
Single-family homes and townhouses are not covered. If you are building a development that has elevators, and this is all language here that is important, all units must be usable by people with disabilities. We are not talking full accessibility, but must be usable by people with disabilities. If you don't have an elevator, we are looking at only ground floors, ground floor units should be usable by people with disabilities. What we have seen a lot lately, especially in cities, Chicago being one, is that maybe you have a first floor that has retail, if that happens and the second floor becomes the floor that has to be accessible to persons with disabilities.
Okay.
So, on slide 25, it gets kind of into the minutia of what we are looking for, what exactly the guidelines say. I think it's important because a lot of people even though we are very far into having these out there, many people don't know what these look like. The Fair Housing Act accessibility guidelines so these are probably, I would say in a scheme of all the accessibility guidelines, these are the easiest, the broadest, not as strict as when you get into accessibility guidelines under, for using the ADAAG or using UFAS. But we will go through some of these.
We need at least one accessible building entrance. It has to be on an accessible route, with wide enough doors. We are looking at entrance doors that are 36 inches, but throughout the entire unit we are looking at 32. Common areas need to be accessible. So we have gone out and done a lot of site visits where you see more and more amenities. All of those things need to be accessible. Maybe you have a party room or we have seen rooftop party rooms, balconies, laundry rooms. A big thing we keep seeing are mailboxes that are not within accessible range. You often need an accessible route into and through the unit. Light switches, thermostats, and things like that, so we are looking at all environmental controls need to be within reach range.
Then something that is very hard to see, unless you are kind of demolishing something, but we look at drawings and plans for buildings, is that there is reinforcement behind bathroom walls, so that is a misconception, is that grab bars need to be installed in units under Fair Housing Act, and that is not true, but there needs to be reinforcement there just in case somebody were to need grab bars installed.
Then we talk about usable kitchens and bathrooms, so we look at the footprint of a wheelchair, and see if somebody in a wheelchair would be able to fully turn around in these areas. If you have a galley kitchen or you have a smaller bathroom, if somebody in a wheelchair can use these rooms.
I'm sure you guys are all so interested in this, I hope I'm not boring you, but I want you to look at these common violations that we are seeing in design and construction. I hope you notice that nearly all of the guidelines that I just went over are things that we see, that are commonly violated. We are 30 years into having these guidelines and we are still seeing things built incorrectly. It signals to us that many builders either still don't know the codes, or simply don't care about the codes. So some of the things that we have seen on site are sloping ramps, cracked and broken concrete that make accessible entrance impossible. The accessible and usable common areas sometimes don't exist. Even in places where we go and we will see a management office, which is the first step in somebody going to rent an apartment are not accessible. Usable doors, this is a huge issue with thresholds. While we get a lot of people argue that maybe they put a storm door on or something to battle the elements, the threshold may be up to two inches or more, which makes it impossible for somebody using a wheelchair to enter. We also see threshold issues going into a shower that may make it impossible for somebody to transfer into a shower, that there is not accessible routes into and throughout the unit. I've seen ridiculous things where light switches may be completely out of reach range. Environmental controls that are out of somebody who is using a wheelchair's reach. We are living in a time where things can be put on remote control, and we don't even see that sometimes when we go on site visits.
One thing that we do see a lot are it's just the absence of that reinforcement that we were talking about for the grab bars. Again, it's, this seems like a list from the other page, but kitchens and bathrooms that are just not usable.
So, I did put a list of resources that you can take time and look at, if you ever feel like it. But what we were talking about is there is so many different standards and it's a very technical, what falls under what guidance. Remember like I said before, what is covered under the Fair Housing Act, and those things that are covered there, if you are a person who is living in a multifamily residence, or public housing, and you have to know that that is covered by section 504. And that most things are covered by the ADA. So there is a lot of things out there that, while we may be giving you kind of just like ground level of accessibility guidance, there may be even more things that owners have to do to be in compliance with building codes.
Okay. So Peter and I had talked, and we thought it would be a good idea to discuss some topics that FHEO is currently experiencing, like an influx of in disability discrimination. I'm on slide 28. I don't think it would be a surprise to anybody that one of those topics is service animals.
What we are looking at for service animals are that basically the terminology, that they are animals, that they are not pets. They are aides to a person with a disability and not just their pet. They are not subject to the general rules and fees that a landlord may typically put on somebody with a pet.
As we know, and this is a topic of conversation a lot, such animals cannot be rejected because the lack of specialized training. In housing, we are talking about, under the Fair Housing Act, there does not have to be a certification that the animal is trained to perform any kind of services for you. This comes up a lot too, the animal does have to receive its shots, so it's rabies shots and things like that, you know, the state usually, we defer to them on what they are looking for, as far as keeping an animal, and sometimes they will have to be like spayed or neutered so that will have to happen, you have to be in compliance with state or local law.
Then really, just because you have a service animal does not mean that you are not going to be held responsible for things like picking up waste and things like that. The owner's animal you take responsibility for the animal that it has to be restrained, that the waste is properly disposed of, that they are not barking at all hours of the day and night. So we are looking that the animal while it's helping somebody with a disability is not interfering with other people's right to quiet enjoyment.
Then you also look at damages to the unit that may be above and beyond normal wear and tear, and depending on what that is, the person with the service animal may be responsible for that.
You couldn't ask for a better resource than Department of Justice and fair housing issued a joint statement, which goes over pretty much any question you would have about service animals. I would refer you to that, if you had other questions that I didn't cover.
Another thing that we have come across a lot are maybe people with psychiatric or mental disorders, that housing providers consider direct threats, and may arbitrarily say this person has X, Y or Z, maybe they are a person who has schizophrenia, and somehow they know about the diagnosis, and then just discriminate based upon knowing that diagnosis. So what we look for is, people have to do a direct threat analysis, and so what that is, is you look at if a person poses a direct threat to others, and that has to be based on objective evidence. Their current conduct, or maybe something that happened in the past, but there has to be objective evidence. It is not just that a person has a disability. The assessment has to consider the nature, duration and severity of the risk of injury, probability that injury will occur and whether any accommodation would eliminate the threat.
We hear it when people say that person is off their meds or things like that, and people may say it almost jokingly but a lot of times, if that is an accommodation that would mediate a situation, it has to be considered in a direct threat analysis. So has that person ever received treatment or are they on medication? Things, there has to be an assessment done, you can't just blanketly tell somebody they can't live there because you consider them a threat. Everything has to have evidence behind it.
I feel like I'm rushing through it. I apologize. You can ask me questions at the end, if I am. But I switched to slide 30.
I think kind of routinely something that comes up are live in aides in housing. There is a HUD defined, HUD definition for what a live in aide is. It's a person who resides with one or more elderly persons, or near elderly persons, or persons with disabilities. That person is essential to the care and well-being of the person, not obligated for the support of the person. There is always a question about that language, and that means financially. You are not moving somebody in because you can't, you can't afford the rent anymore, and would not be living in the unit except to provide the necessary supportive services. That kind of ties back to someone's daughter comes back from college, and there is a rule, maybe the building has a rule that there is no more lease additions, just for family members or something like that. And someone says, that is going to be my live in aide now. Well, if they are not needed to provide the necessary supportive services, then they would ordinarily be living there for other reasons, they wouldn't be able to be the live in aide.
Tenants with live in aides are subject to special rules. It talked about we never look at live in aides' income or their credit, because it doesn't matter. Housing agencies have to ensure that a live in aide is necessary for the support of a person with a disability before excluding his or her income. That is what we talked about a little bit like if someone's daughter is coming, is it just that you want to live there or you are actually providing services. That is when we get into kind of getting certification from medical providers or other knowledgeable professionals, that somebody would need a live in aide.
That goes directly to the last point, the housing agency generally requires the applicant or resident to document the necessity for a live in aide. I have never seen somebody get granted a live in aide that hasn't gone through a process of having it certified by a provider first.
Okay. So, this last slide 31 we talked a little bit about if you feel like you have been discriminated against about filing a Fair Housing complaint. There is so many ways to do that now. All are free. I included the website that you can go to, to file an on-line complaint, so you can do it on-line, you can do it by phone, and phone numbers are at the bottom including the TTY number. You can always walk in and actually file an in-person complaint with your local HUD office. I think hopefully I didn't talk too quickly, Peter. But I think that's the end of my slides.
Peter Berg
All right. That gives us lots of time for lots of questions that we have for you, Amanda. Sydney, if you would give instructions for our telephone participants on how they can ask questions at this time, please.
Operator
To ask a question, you need to press star, then 1 on your telephone. To withdraw your question, press the pound key. Please stand by while we compile the Q and A roster.
Peter Berg
All right, while we are waiting for that, Amanda, if you could provide a clarification on who is considered a housing provider, under the subject, subject to the Fair Housing Act, because we had some questions here about condo association, homeowners associations, and so forth. What are very limited exceptions, you talked about it briefly but if you can go over that again.
AMANDA MOTYKA
So, that is something that we encounter a lot, the condo, homeowners association, and we have seen a lot of complaints. They are what you would consider, they may not be the actual housing provider but since they have rules in place, those are subject to reasonable accommodation and modification. It follows generally the same process as all other complaints. They are not, the housing or sorry, the homeowner association is not exempt from Fair Housing. We are talking more about say you move into, it's always called Mrs. Murphy law, where you have a little old lady that is renting out the upstairs unit, those are areas where it's not applicable. But very definitely we see homeowners associations that, if you are being asked by one of your residents to, we have seen anything from people with MS or ALS, rheumatoid arthritis asking for outdoor hot tubs to be installed, because that is the only thing that alleviates pain, things like that, those are complaints that we take, so yeah, hopefully, you know, and providers in general, we are talking about if you are using a section 8 voucher so your landlord that is your provider but they may not, under that program they don't pay for your modifications, which is different from a public housing authority, which would have to pay for your modifications if you are living in their housing. So it's sometimes complicated, but if you have questions about that, you can call and we can lead you through that. I hope it clears it up a little bit. But you can refer to that slide, and if it's a gray area, we can definitely look into it for you, or help you.
Peter Berg
There was a follow-up there, is there language in the Fair Housing Act that you, you talked about when you were defining some of it as rent, three single-family homes or fewer is not covered. Is there another piece where they don't use a real estate agent or don't advertise, that also plays into that exception? Or is it simply three single-family homes or fewer.
AMANDA MOTYKA
No, there is more information in the act that does specify, use through -- you can find different parties liable for the discrimination. Perhaps you used a real estate agent, we have had cases, complaints against the agent who, mainly we are talking about, if somebody is bringing you to a particular place and you experience discrimination there, you can be, they can be liable for a complaint..
Peter Berg
For clarification we talked about that single-family homes are exempt. They are not subject to the Fair Housing Act accessibility guidelines, but in that instance if there was a homeowners association for that neighborhood of single-family homes, the homeowners association would still be covered by the Fair Housing Act itself?
AMANDA MOTYKA
That's right.
Peter Berg
In that situation, okay.
AMANDA MOTYKA
That's right.
Peter Berg
As long as we are on that, I'm going to go ahead with a couple questions around that area, homeowners associations. Specific questions about a family that made a request to a rule regarding the types of fences that could be installed in the neighborhood, and family has a child with autism, and, they wanted to install a fence for safety of the child who is a risk for running away. Then another example, someone talked about where this was another homeowners association and a individual wanted to make an alteration to the exterior, to make changes for a mobility disability, and was denied, and the premise was that it doesn't fit the architectural design of the neighborhood. If you can talk about those two specific examples and just in general of homeowners associations and their obligations to, I guess those would fall under reasonable, I guess both modifications and accommodations.
AMANDA MOTYKA
Sure. What we are talking about here, to clarify because I'm sure it would be a question, they are not paying for it. By they, I mean the homeowners association. But if somebody were to walk in and say exactly what you just said, I have a child with autism, we want to build a fence for their safety, and they outright come back and say no, then that is what we would look at and say, discriminatory, because that is not considered, you know, you have failed to provide a reasonable accommodation. And eventually, we conciliated a lot of cases where they started out not being responsible to pay, but they are, because you violated the law.
What we are looking for, I know, and I don't know if anybody is part of, if they are a homeowners association that are listening, but may not be kind of the best people you want to negotiate stuff with. But there has to be an I'm sure everyone heard about interactive process, I may want XYZ, this type of fence, and whatever, and the homeowners association says no, they still need to talk with you and maybe figure out something that maybe you want to put in, what is it, cyclone fencing, but they would rather have you do something that looks like wrought iron, something like this. There needs to be a conversation before it's just outright denied that that is going to happen. I'm trying to think of what else I'd want to -- we have seen so many things, up to, and a lot of it like you are saying is just about appearance. So people that want to add ramps, but are told no, and these are violations, and that is something you should, if not contact HUD about, then contact maybe your local department of human rights about, if you do have that. But those are things they can't blanketly say no to.
Peter Berg
A couple follow-ups on that. With regards to homeowners association, condo associations, where more often for condo associations you have some sort of management company, by extension, are they subject to the FHA or because they are working on behalf of the condo association they are subject to the FHA, the face that residents interact with to make requests in that condo setting.
AMANDA MOTYKA
That is a great question and absolutely. When we would take a complaint, we would include both parties, normally, on something like that, who owns the property, who is managing the property, that's something we probably would file against both.
Peter Berg
That is for the condo association, it's incumbent that they identify management companies that are knowledgeable of the Fair Housing Act.
AMANDA MOTYKA
Exactly. There is enough, even free training out there, or Google it, and watch a video, or something. There is actually at this point like no excuse to some things that we are still seeing. So HUD provides funding for other agencies to go out and kind of do trainings and do, educate homeowners and landlords and things like that. So really at this point there is not an excuse for not knowing some of these things.
Peter Berg
Couple questions, I'm going to put these together. You touched on this, but if you clarify again, are residents responsible for the cost of reasonable modifications? I know you have qualifier in that. Another question is, does a private landlord participating in a section 8 program, are they responsible for the cost of reasonable modifications?
AMANDA MOTYKA
Two good questions. What I always tell people is normally, if you can trace the funding for your housing, let's say the easiest one, if you live in public housing that is federally subsidized, so the person that owns that housing is responsible for paying for that modification. There is a tweak on that, when you are using housing voucher in that yes, some of your rent is subsidized by the government, but you are renting from a private landlord who is not responsible for paying for your modification. So a lot of times, you will see some larger housing authorities actually put together modification funds, because they know that a lot of people with disabilities are using vouchers, so I would, a recommendation for somebody to reach out if they are on a voucher to see if funds like that exist. But those are things when you are on a voucher that is something that you are responsible for paying for. Normally, some of the things if you are in multifamily housing, we are talking about bigger developments, those are subsidized by the federal government. The management or the owner is responsible for paying for that modification. The twist becomes if you are out on a voucher, the funding is paying for the rent. It is not paying for that actual unit. You are basically, you are renting from a private landlord who is not responsible for paying for that modification. That being said, if you can pay for it, and you have a way to get that modification in, they have to let that modification happen. They can't say a ramp is ugly and I don't want it on my building or a automatic door opener, you know, brings down the curb appeal or whatever they are going to say. That is where they can get in trouble for discrimination for modifications.
Peter Berg
As follow-up to that, Amanda, can for instance a condo association or a resident is requesting to be able to allowed to install automatic door openers at an exterior door, they need a door on the unit, as part of that interactive process, can the condo association/management company have some requirements and terms of using a contractor that has appropriate insurance or credentials, or that the work be done in, they will allow it but there are certain provisions to installing in this instance a power door opener.
AMANDA MOTYKA
Sure, yeah, that actually is, where it's not the homeowner that is putting it in, is a lot of times you would say, I can save cost if my daughter needs ramp I'll put it in or things like that. A lot of times they will ask and they are entitled to do that for plans or things like that, if you are putting a fence in not just a drawing where you are putting the fence in but having licensed and insured fencing company come out and draw it up for you. Another and I should say this too, another caveat to that is, in private housing, there is the expectation there that once you leave that unit, that that unit be brought back to the same condition it was in before you were there. If there is a ramp, and say the landlord has always thought it was ugly and they want it gone, that is also the tenant's responsibility to have it returned to the same condition it was in before they were there. I haven't personally seen anything like that, where somebody has done all this work, then a lot of times it's a good thing because maybe a landlord will go out and look for somebody with a disability that can use that. But that's something that they can make that expectation.
Peter Berg
There was a question about that, I'm glad that you touched on that. Let me give you the example that someone submitted, was someone installs grab bars in a bathroom by the toilet and the bathtub, is that something that where a landlord housing provider could require that tenant upon leaving to restore that type of installation?
AMANDA MOTYKA
Unfortunately, normally because I don't want to appear biased but I am usually on the side of somebody who would need it, yeah, they can require that. Whatever it says in their lease, like however they put that, they can enforce that. And it is within some of the statutes too, that use that language, the condition of the unit before the modifications were made is how it should be returned when somebody is moving out.
Peter Berg
Great. You talked about contacts for filing complaints at the fair housing hot line the 800-669-9777. Someone wanted to know if you could give a brief overview, oftentimes folks know that they can file a complaint, they are given a telephone number, but what does that actually look like? So from the moment that someone calls the Fair Housing hot line, they talk to someone at HUD, and they begin that complaint process, what does that look like? In terms of expectations, what can someone that thinks they have been discriminated against on the basis of disability, what is the turnaround time for HUD to actually accept a complaint, investigate it and come up with some type of resolution?
AMANDA MOTYKA
Well, I don't know how many people have worked with the government before, but we are not the quickest people. Usually there is a reason for that. I don't mean to be, you know, joking about it. But this is normally what happens. We will receive a call. You usually talk to one of our intake analysts. What they are tasked with doing is looking to see if the complaint is jurisdictional. For example, does it, is it something we can look at? Does it fall under one of those protected classes that we keep going over? Is it within time lines? Is it, is one of those exemptions applicable there. They go through and look at all of that. They listen to what happened and write that up and do the first step of investigating that, so they will find out who, a lot of times people won't know, I don't know who owns this house, and they will do property searches to figure all that out. As you were saying, with the homeowners association or with, say there was a realtor involved or something, they get all that information about who is going to be the respondent to the complaint. So who we are actually looking at, that has liability for the discriminatory act. They do all that, that can take some time.
We usually, and we I say like if we investigate, then we investigate all those, the claims, if it's something kind of straightforward, so say, I keep picking on housing authorities but say it's, I live at Cuyahoga housing authority, we would know right away, this is who owns it, things like that, that could be pretty quick. We are going to need, they go back and forth with the complaint, and so they want to make sure everything that they heard is right. They are going to send the complaint to the person that is making the complaint and have them sign off on it.
After that, it is assigned internally to an investigator who is going to start the process of finding out what actually happened there. So talking to complainant again, getting their side of the events, and then interacting with the respondent. So whomever we found is liable in that situation, so normally, we ask for, it could be straightforward. We don't see that a lot. A lot of times there is going to be a lot of data requests going back and forth. So like I said, it's very, it doesn't happen often where somebody says to somebody I'm not renting to you because you are black. We have to go back and get demographics, to see if, how other people are treated in similar situations. Typically, I would say about six months, and that's, I would say that that's good, honestly. We have seen some that are still ongoing that are a year plus. It really is, especially since we are on the subject of homeowners associations, especially things that are more complicated like that. People that may not be very interested in settlement or conciliating the problem, and that is our number one thing what we try to do, is, I don't think anyone wants to move, so if we can really get a settlement that works for both parties, and somebody gets to stay where they are currently living, I think that is a win. A lot of times we will come in when it's actually already happened where a person has been evicted or something like that, and then it's a whole kind of case by case, what we are looking at. But I would say even just getting the complaint finalized may take maybe about a month.
Peter Berg
Is there the right of private action under the Fair Housing Act, instead of filing a complaint, could someone have the ability to bring legal action in court?
AMANDA MOTYKA
Sure. I mean, there is some things, once if we find something or not, like somebody can, unless we have conciliated it and ended it, a person can withdraw and do their own thing. Yeah.
Peter Berg
In other instances, Amanda, where HUD office may refer a complaint and there is someone contacted about filing a complaint to a state agency or even a local county or city, human rights, where someone may have greater protections or greater recourse under this local statute.
AMANDA MOTYKA
Yes, so that is a great question because that happens a lot. We do make referrals a lot to, if you hear something that maybe like I said the Illinois department of human rights can do it, or like City of Chicago can look into it. Then we do, we actually have what we were talking about earlier, where we consider some agencies substantially equivalent to HUD, and so they will actually take a pretty fair chunk of cases, and they investigate them just as we would. They are looking at it, how it applies, how the Fair Housing Act applies, and they do that entire investigation. Once that comes through, they take care of it. They investigate it. I couldn't give you a good ratio of what that looks like, but a really fair amount of cases will go to those agencies.
Peter Berg
A couple questions on Fair Housing Act accessibility guidelines. Before I get to that, let me ask my own question. Do you have any knowledge about HUD's moving forward with updating the Fair Housing Act accessibility guidelines? Probably not but --
AMANDA MOTYKA
Not to be too controversial but I one expect anything for the next couple years.
Peter Berg
A couple questions on Fair Housing Act accessibility guidelines, one wants to know about sidewalks, in an apartment complex are sidewalks could have had by the Fair Housing Act accessibility guidelines, where you have multiple apartment buildings and sidewalks connect to buildings and to the clubhouse. The second one is clarification of something that you touched on during your presentation, for instance, in an apartment clubhouse, that has a fitness center, it has a business center, it has a party room, it also has a swimming pool with changing rooms, are all of those areas covered by the accessibility guidelines and are they required to be accessible?
AMANDA MOTYKA
Another great question. Short answer, yes. So yes, if they are offering common area amenities, those all have to be accessible.
That just is, so that's, period. If they are doing, you have a common bathroom, there has to be, that has to be accessible, like the changing rooms, there has to be a shower that is accessible for a person who is using a mobility aid. Doors, a lot of times it will be something like door pressure, things like that. We really are looking for like the whole thing to be accessible. So the sidewalk issue, what we do and I'll tell you what we do when we normally go on site after we receive a complaint, and that is we use what they have deemed the accessible route to take us throughout the entire development. If I live in one building, there should be an accessible route for me to get to. The laundry facility that may be a couple buildings away. And typically, I mean we will walk that, sometimes we will have a person that is using a wheelchair come with, to see if it's usable. But the entire time you are kind of looking for slope issues, or like somebody said if it's cracked and unusable, then of course that is not an accessible route. So but if it's something, if they can establish that there is an accessible route to common areas or you know, that from a unit, if you are somewhere and it's not what they have deemed the accessible route and say it's cracked sidewalk or things like that, that is kind of iffy. That's, you know, they should fix it anyway, not even for somebody that is even just using a wheelchair, but ....
Claudia Diaz
I apologize for participants in the room, we lost our telephone. Let me get the connection established.
Peter Berg
We were talking about sidewalks.
AMANDA MOTYKA
If we are away from the accessible route that has been established, I would just think that that is a good business to have that corrected for all residents. But really, that is what we are looking at when we, just talking in terms of once we have received a complaint, we come out, we are looking at accessible routes mainly.
Peter Berg
Before we get any further, let's get into service and assistance animals. At the ADA National Network it's something we get lots of questions on.
Whether this is housing provider, housing authority, condo association, what type of documentation can a housing provider require from a resident that is seeking an accommodation to a no pet policy?
AMANDA MOTYKA
Sure. We have all these laws that are kind of colliding, when we are looking at assistance animals, and emotional support animals. And where they are. Strictly speaking, we are talking about in your house, in your unit, what people are allowed to ask you for is what we talked about before, is that certification of need. So from your provider, whomever is willing to say that you need this animal for either, maybe you need it for the emotional support as we said, or you need it as a service animal, that is what they are allowed to ask for. They are not, and sometimes people get into it about there doesn't have to be a certification that that animal is trained. Other things that they can ask you for are records of the inoculations, going back to state and local regulations, like if the animal is spayed or neutered, things like that, those are things they can ask for. But things they can't ask for is for that animal to have been trained, and for you to have certificate of that training.
Peter Berg
For clarification, if they are asking for information about vaccinations, if it is a property that allows pets, that would have to be their policy across the board, right?
AMANDA MOTYKA
Absolutely.
Peter Berg
Couldn't ask it just for assistance animals.
AMANDA MOTYKA
Absolutely right.
Peter Berg
Is it correct that under the Fair Housing Act, that the terms that are used, we have ADA and definition of service animals and the Air Carrier Access act under FHA the terms are service and assistance animals. And if you would talk more about what would fall under that latter category of an assistance animal.
AMANDA MOTYKA
Sure. What we are really looking at is, you can kind of see the huge differences here of how it is defined in different places. As you just said, it says Fair Housing Act is assistance animal, so if it's a cat or two cats, or maybe like watching fish helps you and that is your emotional support animal that way, or you have an iguana that you walk around with on a leash, I don't know, whichever, whatever falls underneath something that is helping you, that as long as it's not a dangerous animal, that is something that goes under Fair Housing Act. ADA has specific language that talks about, I believe it says only, it only says dog. That is something really, those are the difference. If where you are living, compared to something that you can take on a bus or a plane or in a restaurant, so for your residents, it is the type of animal that is not dangerous to anybody else, that, and you can kind of follow the rest of what is outlined there. So if it is a dog, as we said, that you are picking up after it, and things like that. But they are under the FHA there is not such specificity, if I can talk, as there are other ADA and things like that.
Peter Berg
The ADA, service animals are limited species to dog only with modifications for individually trained miniature horses. To follow up on a couple different things, Amanda, going back to the documentation, documentation would be something along the lines, the housing provided would be limited to documentation that indicates, one, that the resident has a disability as defined under FHA, and two that what you talked about, there is a disability need for the animal?
AMANDA MOTYKA
Exactly. I know we are all familiar with the kind of lingo or maybe it's more technical than just lingo, but we are talking about an access, we are looking at the connection between the person just, yes, that's all they need to know, they don't need to know what type of disability or severity of disability but looking for a person that is disabled, and it makes sense with a disability that they would need this accommodation, so that they would need a service animal, and that is primarily what they can ask you. That is what they are looking to establish. But shouldn't go any further than that.
Peter Berg
Okay. One thing that we hear from time to time, here at the ADA National Network, from housing providers, on-line websites where you can go and print out certification documentation that your animal is X, whatever, whatever it is you pay a certain amount of money, and you can get that printed off from the website. Is that type of documentation, and maybe this is too specific for you to address, but is that type of documentation something the housing provider would have to accept? Would that be considered documentation from an appropriate entity or appropriate professional, however you want to phrase it.
AMANDA MOTYKA
You know, I think that is a difficult one, but I think what they could still ask is, you see that all the time, that you get certification from another provider, somebody that actually has knowledge of your disability. And that's, it kind of goes with what we call them knowledgeable professionals. Do they have knowledge of you being disabled, and do they have knowledge of you needing that assistance animal. So really, something that you printed off the Internet, I would imagine that would be something you could probably fight with, maybe other folks that are asking you for certification, you know, of the animal being trained. But that is not what providers are, housing providers are looking for. They are looking for what we were talking about, that there is somebody there that is telling them that it makes sense for you to have that animal. We are looking for that nexus.
Peter Berg
Yeah. That was a great answer, to highlight, because it addresses the issue of the websites that you talked about, someone that has knowledge of the person's disability, and B, someone that has knowledge of that disability need for the animal, and some places where that documentation comes from, there isn't going to be that knowledge of the disability or the need for the animal. That is a great way of putting it.
Just because we are on a roll, let's keep, continue on with service and assistance animals. Are there instances where, this is a question we had submitted here and we got before, can housing providers go back to a resident and get updated documentation once they have gone through the process of getting the accommodation to a no pet policy, can the landlord go back and say we want updated documentation?
AMANDA MOTYKA
No. Simple answer, no. No. Once it's been established, that's it. That's enough. It's not part of, even just looking at it technically, from things that, even if you are living in subsidized housing and you have to recertify, the whole recertification process there are certain things that people need, and that is not one of them. So yeah, short answer, no.
Peter Berg
One last services animal question does a visitor to, someone who is going to visit someone that lives in the condo building and it's a no pet building, can a visitor with a disability that uses a service animal, do they have rights to enter that no pet building, whether it's a condo or an apartment building.
AMANDA MOTYKA
I like that question. We had a case, we took a case where that exact situation happened, where they denied someone access to a building, because they had a service animal. So people, your visitors, if you are a person, even if you are not a person with a disability, if you are a visitor, your visitor is a person with a disability, the act extends to them. They of course can bring their service animal on property. And people will always ask you that, because they don't know you, like if you are a visitor they don't know you like they know their resident. But that is a very definitely, one of those things where I think like you were talking about, where we get into like, oh, if they are asking if you have certificates and all this kind of stuff, and they can't. That is really one of those things too, that I think things like this are great, so we can get out what people can and cannot ask for.
Peter Berg
That may be a situation where the person that is going to visit, if they are aware of the no pet policy, may need to take steps with the person they are going to visit or contact the management company, to perhaps let them know in advance that they will be visiting with a service or assistance animal to avoid confusion or situations.
AMANDA MOTYKA
Absolutely.
Peter Berg
I promise, one last question, this was something you addressed when you presented previously on service and assistance animals. Can you talk about the application of the Fair Housing Act to local ordinances? So a resident, single-family home, and the local municipality says, a limit on the number of rabbits or we don't allow chickens and the resident says these are my assistance rabbits, chickens, whatever the case may be. How does the FHA apply in that scenario?
AMANDA MOTYKA
Yeah. So blanketly, they say that there is not a limit. But, we also operate in, with that very like subjective term of reasonable. So if you have like 50 chickens, it may be an issue. Again, going and taking like the easy way out, but it's a case by case situation. If you have two cats, okay. And I know we are getting different examples because it says that there shall not be a limitation on size of animals, breed of animal, but really when we are talking about numbers, there has to be something for reasonableness there too. So I just remember one of the cases that I dealt with at the housing authority, where we had small studios and a senior there needed an assistance animal but wanted two huge St. Bernard's. And really ended up being an issue of, is it reasonable, is it practical, to house a dog that is 180 pounds, two of them, with somebody in 500 square feet or whatever it was, and so a lot of things ends up having to be a conversation of what is going to be reasonable but also still be helpful to the person with the disability. So normally, if the FHA is going to, like we are talking about, is going to win out over what the local kind of guidelines are on things like that, they do defer to them, like I said, about shots and things like that, but just because they blanketly outlaw pit bulls or like shepherds and things like that, there is legitimate fight there with, for filing a Fair Housing complaint.
Peter Berg
We are getting close to the bottom of the hour. A quick clarification, about caretakers, and someone wants to know does this mean an adult family member cannot be a live in caretaker?
AMANDA MOTYKA
No. You know what, I think what I said, I was using an example that got away from me. What we are saying is, here are examples people have seen. I come in and try to get my daughter on my lease, for whatever reason, say it's a credit check or whatever it is, no, she can't come in. Say you hear that. The person comes the next day and say I want my daughter to be my live in aide, not a family member. And then you know that we don't take in consideration credit and things like that, that would be an instance where they say, hey, if this person would be living in your unit, not to provide services, just to be a family member, so that's kind of where I was getting at. What I'm saying is, is the things that they can ask for are that thinking we were going over, you have a disability and you need somebody to provide you services, and so it could be, and that is where the housing provider needs to butt out a little bit, it could be whomever you deem able to give you those services. So your daughter, your son, things like that. But see it too many times where somebody does something that is similar to that, but I did not mean to make it sound like an adult family member couldn't, for sure, and that is normally who ends up being a live in aide.
Peter Berg
One last one real quick, we are at the bottom of the hour. Effective communication, on-line applications, on-line payments systems, covered by FHA, right? For resident that may be blind uses assistive technology, there would be a need for either that being accessible or the housing provider making some type of accommodation.
AMANDA MOTYKA
Absolutely. Yes. Just request it. You have to ask for it.
Peter Berg
Very good. We reached the bottom of the hour. We still have more questions to go. But we have reached the end. I want to thank Amanda not just for the time that she's spent with us for the 90 plus minutes, but all of her time in preparing for this session. We really appreciate that. We appreciate all of you joining us today, the participants are the reasons why we do these sessions, encourage you to do a complete the evaluation of the session that helps us for planning future sessions. So we need that feedback. A note on the next session which will kick off the 2019, 2020, into a new decade or end of this decade, I don't know how this works. But a note on that October session, that will be on October 8. That is a different date we typically do these on the third Tuesday of the month, it is the second Tuesday, October 8. We will be talking about understanding the Disability Equality Index, so as we get into national disability employment month, we are going to have a representative from disability in doing a session on that. You can find information on the registry for that session and there are other sessions up on the ADA-audio.org website. If you have questions, contact us at 877-232-1990. Today's session has been recorded and an edited archive will be posted within a couple of weeks. Thanks to our speaker, Amanda, thanks to all of you for joining us today. Good luck, everyone. Enjoy the remainder of your Tuesday. Thanks and good day.
Operator
Ladies and gentlemen, this concludes today's conference. Thank you for participating. You may now disconnect.
Note
Communication Access Realtime Translation (CART), captioning, and/or live transcription are provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.