Disability Accommodation Claims Against Private Defendants

Property II: Class #23Wednesday 11/7/18Power Point PresentationInternational Stress Awareness Day

Music to Accompany Groner & Dadian: Elton John, Songs from the West Coast (2001) Two Group Home Cases for Monday • Smith & Lee; Hemisphere Building • My edit of both cases includes both • Intentional Discrimination claims (3604(f)(1) • Reasonable Accommodation claims (3604(f)(3)(b) • Purpose: to show common overlap (also found in Dadian) • Just responsible for ReasAccomm analysis & further info on meaning of “necessary” and “reasonable.”

Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims Against Private Defendants

Accommodations Claims Against Private DefendantsCal. Mobile Home Park Cases Generally • E C-S lives in mobile home park; has daughter w disability • Daughter’s condition requires supervision by visiting Health Care Aide • Claim is that fees for guest parking should be waived for Aide • 1994 Case (ruling on Motion to Dismiss) holds fees generally applicable to all residents can be subject of reas accomm claim. • 1997 Case affirms trial court holding after trial that fee waiver wasn’t necessary for E C-S to use and enjoy the dwelling

Cal. Mobile Home Park I & II: DQ4.10-4.11Friedhoff & McLaughlin • 4.11. Suppose you were litigating a case today with facts similar to those in California Mobile Home Park. After reading the two opinions in the case, what evidence would you look for to try to establish that the waiver of parking fees was reasonable? (1) the amount of fees imposed (2) the relationship between the amount of fees and the overall housing cost (3) the proportion of other tenants paying such fees (4) the importance of the fees to the landlord's overall revenues (5) the importance of the fee waiver to the handicapped tenant.

Cal. Mobile Home Park I & II: DQ4.10-4.11Friedhoff & McLaughlin • 4.11What evidence would you look for to try to establish that the waiver of parking fees was necessary? (Need to show can’t get care or care diminished) (1) Need Caregiver for tenant [child] health (2) Need Caregiver to come to home (3) Caregiver needs car v. mass transit (Where is Costa Mesa?) (4) Reasonable parking unavailable outside park - distance - access to park (5) Fees too high to allow Caregiver visits? (Check who pays & ability to afford)

Groner: DQ4.12Fleming & Ramos • 4.12. Gronerholds that the burden of showing an accommodation is reasonable rests on the claimant. The court says this follows from its prior holding that the claimant bears the burden of showing that the accommodation is necessary. • BUT could follow other courts: if necessary, burden shifts to D to show unreasonable. • Courts split on this; SCt hasn’t resolved. • What other arguments do you see about who should bear this burden?

Groner Generally • Big messy case about important class of cases where claimant causes problems for neighbors or co-workers caused by a disability (usually mental). • Here P screamed & slammed door disturbing neighbor. Long sequence of attempted accommodations ends with eviction. • In a few cases, the claimant is sometimes a direct threat to safety of neighbors (we’ll come back to with Dadian).

Groner: DQ4.13-4.14: (Fleming & Ramos) Proposed Accommodations Not Reasonable A)Extend lease and give social worker notice? (1) no b/c after 5 mos., complaints continued. (2) would likely impose an undue administrative bdn on ldld’s staff B) Move P? No; all units in 2 story structure so same problem would recur. C) Put hard of hearing tenant in upstairs apt?No evidence of such a tenant in complex so not shown to be feasible. D) Move complainant? “Golden Gate could not lawfully force Arter to vacate her apartment during her lease. "As a matter of law, the [neighbor's] rights did not have to be sacrificed on the altar of reasonable accommodation." • GOOD RESULT? (4.14)

Groner: DQ4.13-4.14: (Fleming & Ramos) Proposed Accommodations Not Reasonable E) Further soundproofing of his apartment at P’s expense (Reas Mod)? (1) Soundproofing door didn’t help (2) Legitimate safety concerns re soundproofing and emergencies. (3) Would substantially alter Groner's apartment beyond his tenancy = fund’l alteration • DO YOU AGREE RE FUNDAMENTAL ALTERATION? (4.13) F) Claim that D didn’t engage in sufficient good faith dialogue? (1) D had been in contact w social worker for months w/o fixing situation (2) Nothing in statute or regs requires dialogue. Qs on Groner?

Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims Against Gov’t DefendantsGeneral Background

Claims Against Gov’t Defendants Equal Protection Review of Disabiloity Discrimination A. Cases say Rational Basis Review B. City of Cleburne v. Cleburne Living Center, 473 US 432 (1985) 1. Denial of permit for group home for mentally retarded; lot of evidence of prejudice in community & in city rationales 2. SCt said unconstitutional; said was doing rat’l basis, but seemed stricter 3. BUT clear govtallowed to draw lines re disability for some purposes C. Heller v. Doe, 509 US 312 (1993) 1. Difference in treatment in statute: mental retardation v. mentally ill 2.SCt: rational basis means near complete deference to govt 3. Why different?: Maybe animus against group v. deference to expertise

Claims Against Gov’t Defendants: 42 USC §3615 • §3615. Effect on State laws. Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in which this subchapter shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.

Chapter 4: DISABILITY ACCOMMODATIONSAccommodations Claims Against Gov’t DefendantsZoning I: Individual Residences

Dadian Generally 1. Elderly owners want to rebuild house w front drive b/c of limited mobility (long walk from existing rear garage) 2. Ordinance forbids front or side driveway unless a. 50% or more on block already had (6/16 here) OR b. hardship (defined in footnote 2) 3.Village denies hardship permit b/c a. Believed Mrs. D wd be direct threat to others when backing out of driveway b. Says Os cd instead could build rear driveway w turnabout (Ds say wd ruin backyard)

Dadian Generally 3.Village denies hardship permit b/c a. Believed Mrs. D would be direct threat to other drivers when backing out of driveway b. Says Os cd instead could build rear driveway w turnabout (Ds say would ruin backyard) 4. Os sued on both intentional discrim & reasaccomm 5. Jury verdict for Ps affirmed by CtApp on reasaccomgds

Dadian & DQ4.16 ALL (except Mandel) 4.16. Did the ordinance laid out in fn2 entitle the Dadians to a hardship exemption independently of their federal claims? • Doesn’t look like it; list in fn 2 looks like “hardship” requirement for variance, so personal hardship probably not intended.

Dadian & DQ4.17 (NECESSARY) ALL (except Mandel) • Claimant burden to show that requested accommodation is “necessary”: “that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability.” • Jury could have (but did not) find that the availability of the backyard turnabout driveway made the accommodation requested by the Dadiansunnecessary (or unreasonable). • The backyard driveway was fully consistent with zoning. • Although driveway would have lowered the value of the lot, maybe OK to believe claimants should bear costs of required changes (cf. Hemisphere on Monday)

Dadian & DQ4.17 (REASONABLE) ALL (except Mandel) • Q of reasonableness “is highly fact-specific, and determined on a case-by-case basis by balancing the cost to the defendant and the benefit to the plaintiff.” • The “overall focus” is on “whether waiver of the rule in the particular case at hand would be so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change.”

Dadian & DQ4.17 (REASONABLE) ALL (except Mandel) • Evidence supporting jury verdict • 6/16 houses on block had curb cuts for front or side driveway • Physical needs of Ps • Architect: fits w new home design • Do you agree with the jury that, under all the circumstances, the requested accommodation was reasonable?

Dadian & DQ4.18 (Direct Threat) ALL (except Mandel) 3604 (f) (9) Nothing in this subsection [= 3604(f)] requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. • Dadiancorrectly cites Arline: Need to attempt accommodation before applying Direct Threat exception. • Note on its face only applies to threats to other people, not to health/safety of disabled individual.

Dadian & DQ4.18 (Direct Threat) ALL (except Mandel) • What sort of evidence on behalf of the city would you want to satisfy its burden of proving a direct threat to health and safety from Mrs. Dadian’s driving? • What sort of evidence would you want on behalf of the Dadians to rebut the city’s direct threat claim? • Could the Dadian’s argue that, as long as the state allows Mrs. Dadian to drive, the municipality cannot raise her driving as a direct threat?

3603(b) & Zoning: DQ4.19-4.20ALL (except Mandel) • Common statutory interpretation issue: • Existing statutory scheme contains one or more exemptions (like 3603(b)) • The legislature amends the statutory language creating new causes of action without modifying the exemptions (like 3604(f)) • Do the exemption apply (in whole or in part) to the new causes of action? • 4.19. Some courts have held that if a house or room is exempt under 3603 for purposes of suits against the owner, then residents cannot bring a reasonable accommodations action regarding the zoning that governs the house or room.

3603(b): Nothing in [§3604] (other than subsection (c)) shall apply to— • (1) [SFH exemption] any single‑family house (SFH) sold or rented by an owner: Provided, That • O doesn’t own more than 3 such SFHs or proceeds from more than 3 SFHs • Exemption on no more than one sale a year • Sale/rental done without use of real estate professional or discriminatory ads • (2) [Boarding House exemption] rooms/units in dwellings intended to be occupied by no more than four families if the owner lives there 4.19 LANGUAGE SUPPORTING APPLYING THE EXEMPTION TO CLAIMS RE ZONING?

3603(b): Nothing in [§3604] (other than subsection (c)) shall apply to— • (1) [SFH exemption] any single‑family house (SFH) sold or rented by an owner [Note this doesn’t include Dadian]: Provided, That • O doesn’t own more than 3 such SFHs or proceeds from more than 3 SFHs • Exemption on no more than one sale a year • Sale/rental done without use of real estate professional or discriminatory ads • (2) [Boarding House exemption] rooms/units in dwellings intended to be occupied by no more than four families if the owner lives there 4.20: PURPOSES OF EXEMPTIONS? FURTHERED BY EXTENSION TO ZONING?

Disability Accommodation Claims Against Private Defendants