Articles Posted in Fair Housing Act claims

MichaelChapnicksrhl-law-thumb-120x180-94116Firm partner Michael E. Chapnick authored an article that appeared as a “Board of Contributors” guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Ruling Illustrates Unpredictability of Fair Housing Litigation for Associations,” focuses on a recent ruling by the First District Court of Appeal that highlights the unpredictable nature of Fair Housing Act litigation for unwary associations.  Michael’s article reads:

The decision came in the case of Harbour Pointe of Perdido Key Condominium Association v. Henkel, which originated from a housing discrimination complaint filed by James Henkel with the Florida Commission on Human Relations pursuant to the Fair Housing Act.  Henkel alleged that the association committed discriminatory housing practices by making modifications to the closing pressure of doors that rendered many of the common areas at his condominium inaccessible to him.

The administrative law judge with the Division of Administrative Hearings presiding over the case concluded that Henkel had failed to establish that the association discriminated against him based on his handicap, but the commission disagreed with the ALJ’s conclusions of law and ruled against the association.

In the association’s subsequent appeal before the First DCA, the majority found that the commission erred in its determination that the association had committed discriminatory housing practices by allegedly making modifications to the opening pressures of doors that rendered them noncompliant with the Fair Housing Act’s standards.  The two judges concluded that the ALJ properly found that Henkel had not proven a prima facie case of discrimination because the association did not design or construct the condominium.  They also ruled that the evidence was insufficient to show that the association had modified the doors, as its oversight of the property had recently been transferred from the original developer.

dbr-logo-300x57A concurring opinion states: ” … the respondent did not design or construct Mr. Henkel’s building, nor make any alterations to the disputed door pressures after assuming ownership of the building.” It goes on to find that evidence indicated the door pressures were not adjustable.

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At the start of summer, associations should evaluate their pool rules and procedures in addition to conducting all of the necessary inspections of their pools, spas and related equipment.

With the help of qualified professionals, the inspections should include all pools and pool equipment as well as the surrounding amenities, including gates, fences, signs, locker rooms, etc.

Association pool rules should focus on health and safety, and should avoid focusing on classes of protected persons, particularly families with children.  Making the activities of children the focus of prohibitory rules can substantially increase the potential that an association will receive a complaint alleging discriminatory conduct under federal, state and local fair housing laws.  Even prohibiting something as seemingly innocuous as “pool toys” could be deemed discriminatory, if directed specifically at children, rather than at all persons.

Likewise, unless your community avails itself of the Housing for Older Persons exemption to the anti-discrimination provisions of the Fair Housing Amendments Act of 1988, designating “adults only” pools or use times may give rise to FHA violations.  Furthermore, some courts have found that not permitting children access to pools and other amenities unless accompanied by parents could also give rise to FHA violations.

pool-rulesSome of the most common safety-related rules include:

  • No running.
  • No glass containers.
  • No diving in shallow areas.
  • No pushing, horseplay, roughhousing, or dunking.
  • No smoking and/or tobacco products in the pool area.

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With the approval of Amendment 2 last November to legalize the use of medical marijuana in Florida, the state legislature and Department of Health are now developing the rules and regulations that will govern the use of cannabis by those who suffer from a number of ailments listed in the new constitutional amendment.  Likewise, now is also the time for associations to begin discussing and considering the implementation of their own rules and restrictions regarding the use of the drug by unit owners in their communities.

For most communities, the question of whether the use of medical marijuana should be allowed in the common areas will likely cause the most unease.  Other concerns include the use of cannabis inside of the residences, especially in condominiums where the odor could permeate into the common elements or other residences, and some properties may wish to ban the drug from the community in its entirety.

It remains unclear whether the state’s lawmakers will attempt to ban the smoking of medical marijuana.  If smoking marijuana is allowed under the laws that will be adopted in order to comply with the amendment, community associations will need to address whether they must make exceptions to their rules in order to allow residents with a doctor’s prescription to smoke medical marijuana.

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Disagreements over service animals have consistently ranked among the most prevalent types of disputes that arise between community associations and their residents. In South Florida alone we have witnessed numerous investigations concerning discrimination claims —many of which still serve as stark reminders of the severe implications of mishandling requests for service animal accommodations.

Most government investigations begin with a complaint from a resident indicating that their request for assistance animals had been denied or that they had refrained from requesting an assistance animal for fear of being evicted.

In light of the patterns we have seen throughout the years, associations should refrain from automatically denying requests for permission to keep service or emotional support animals without first requesting additional information from the resident. By law, associations are entitled to make inquiries in order to determine if the request is legitimate and whether a service or emotional support animal is a necessary accommodation in order for the resident to have an equal opportunity to use and enjoy their dwelling.

sdogAssociations are entitled to inquire about how the disability affects the resident’s major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with any major life activity that is impaired by their disability when the disability or the need for the requested accommodation is not apparent.  Associations may also request that the resident provide this information from their doctor.

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MichaelChapnicksrhl-law-thumb-120x180-94116An article authored by firm partner Michael E. Chapnick appeared as a guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  Michael’s article, which was titled “Proposed HUD Rule Would Make Associations Guardians of Civil Rights,” focuses on a proposed rule change by the Department of Housing and Urban Development that could have a significant impact in associations’ involvement in some matters involving disputes among members.

Michael’s article reads:

In October 2015 the U.S. Department of Housing and Urban Development promulgated proposed rules and regulations that have the potential to significantly expand associations’ involvement in some matters involving disputes among members. The proposed changes would serve to standardize how claims of harassment are to be treated under the Fair Housing Amendments Act, and they address both quid pro quo (this for that) and hostile environment harassment in housing.

Claims of quid pro quo harassment typically arise in the context of sexual harassment, which is considered a form of sex discrimination and is prohibited under the Fair Housing Act, in cases in which housing providers condition housing or housing-related services or transactions on sexual conduct.

Hostile environment harassment includes subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person the right to use and enjoy their home.

The proposed hostile environment rule is not based solely on sexual discrimination. It covers all of the protected characteristics, also known as protected classes, under the Fair Housing Act: race, color, national origin, religion, sex, family status and disability.

dbr logo-thumb-400x76-51605The new rule intends to clarify standards for liability based on traditional legal principles of tort liability. It states that a person would be directly liable for failing to take prompt action to correct and end a discriminatory housing practice by that person’s employee or agent when the person should have known of the discriminatory conduct. A person would also be directly liable for failing to take prompt action to correct and end harassment by a third party when the person knew or should have known of the harassment and had a duty to intervene.

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