The Fair Housing Act: Department of Justice Enforcement May 2014-April 2015 H

1. The Fair Housing Act: Department of Justice Enforcement May 2014-April 2015H U.S. Attorney’s Office for the District of Idaho April 2015

2. Fair Housing Act (FHA) H Prohibits discrimination on the basis of: Race, Color, National Origin, Religion, Sex, Disability (1988), Family Status (1988)

3. Who is NOT protected? H • Age • Marital Status • Sexual Orientation • Source of Income (But see ECOA) State or local law may prevent discrimination on these grounds

4. Fair Housing Protection for the LGBT community H • March 2012 HUD Rule • Bars those who own or operate HUD-funded housing from asking about an applicant’s sexual orientation or gender identity • State Protection • More than 20 states now prohibit housing discrimination based on sexual orientation and/or gender identity • Idaho is not among them • City Ordinances - Several Idaho cities have passed ordinances prohibiting housing discrimination based on sexual orientation and/or gender identity

5. FHA Provides Broad Protection • FHA covers “dwellings” • Any building, structure, or portion of a building that is occupied or intended to be occupied • Examples include: • Condominiums, houses, townhouses, duplexes, apartments (4 or more units), homeless shelters, student housing, vacation time shares, shelters for domestic violence victims, group homes for recovering addicts (but not hotels or places of temporary sojourn)

6. FHA Provides Broad Protection • FHA Covers Wide Variety of Activity Associated with obtaining, maintaining, using “dwelling” • Renting, owning, lending, completing application, accessibility, entertaining guests, placing children for adoption, purchasing, terms and conditions of use • DOJ has both civil and criminal enforcement jurisdiction

7. Examples of Criminal Violations • Cross Burnings • Arsons • Assaults • Threats • Homeowners • Prospective purchasers • Realtors • Visitors H

8. Servicemembers Civil Relief Act (SCRA) Provides protections for military members as they enter active duty, covering such issues as: • Rental agreements, pre-paid rent, security deposits • Eviction • Installment contracts • Credit card and mortgage interest rates • Mortgage foreclosure, civil judicial proceedings • Automobile leases • Life and health insurance • Income tax payments H

9. HOW DOJ Gets Involved in Enforcing Fair Housing Act • Files “election” cases from HUD; acts on behalf of complainant (who may intervene in suit) • Investigates other HUD referrals for possible enforcement action • Independent authority to initiate lawsuits alleging “pattern or practice” of discrimination or denial of rights to group of persons that raises issue of “general public importance” H

10. DOJ Enforcement Activities: Remedies • Injunctive Relief (prevention and correction) • Monetary Damages for Aggrieved Persons -- includes emotional distress • Civil Penalties H

11. DOJ Housing Enforcement Since April 2014 • Civil actions/settlements • Based on disability • Based on race • Based on familial status • Based on gender • Based on affordable housing moratorium • Based on SCRA • Criminal prosecutions • Typically involve arson or cross-burnings

12. DOJ Housing Discrimination Cases • Disability/accessibility and design • U.S. v. Nistler, et al., (D. Mont., October 2014) • Montana builder and engineer agreed to pay more than $26,000 and remove accessibility barriers at three apartment buildings in Helena • Barriers at ground floor units and associated public and common use areas, including inaccessible building entrances, no accessible parking, inaccessible routes into and through units, light switches, electrical outlets, thermostats in inaccessible locations • $17,500 to Montana Fair Housing Council and $8,500 in civil penalties to the U.S. • Filed in Sept. 2013

13. DOJ Housing Discrimination Cases Disability/accessibility and design • U.S. v. Barber, et al., (W.D. Wa., Nov. 4, 2014) • Owners and managers of rental homes in and near Kelso and Longview, WA, agreed to pay $25,000 to resolve claims they discriminated on the basis of disability • $20,000 to HUD complainant • $5,000 to the United States • Alleged pattern and practice of discrimination by allowing waiver of $1,000 pet deposit for service animals with specialized training but not for other assistance animals; also alleges refused tenant’s request for a reasonable accommodation to waive $1,000 pet deposit for assistance animal • Under settlement agreement, defendants must also adopt a reasonable accommodation policy that complies with FHA, receive training on FHA requirements and, for 18 months, report on compliance • Lawsuit filed in July 2013

14. DOJ Housing Discrimination Cases • Disability/accessibility and design • U.S. v. Dawn Properties, Inc., et al., (May 2014, S.D. Miss.) • Lawsuit filed against Mississippi developer and affiliated companies alleging FHA and ADA violations in design and construction of five or more residential properties • Barriers include steps to building entrances, non-existent or excessively sloped pedestrian routes from apartment units to amenities such as playgrounds, insufficient maneuvering space for wheelchairs, inaccessible parking • U.S. v. City of San Jacinto, (June 2014, C.D. CA) • DOJ settled with city, which agreed to change its laws to comply with FHA and ADA, and agreed to pay $746,599 in compensatory damages to housing providers and former residents with disabilities • Includes $10,000 in civil penalties to U.S. • Complaint alleged city violated FHA and ADA through ordinance intended to exclude unlicensed and licensed homes for persons with disabilities from the city and through targeting homes for persons with disabilities for enforcement of the ordinance and other local laws

15. DOJ Housing Discrimination Cases • Disability/accessibility and design • U.S. v. Pauley, et al., (Sept. 2014, S.D. W.Va.) • Developer and affiliated entities agreed to pay $110,000 and make $1.7 million in retrofits required to remove accessibility barriers at 30 apartment complexes involving more than 750 units • Retrofits include replacing excessively sloped portions of sidewalks, installing properly sloped curb ramps, replacing cabinets in bathrooms and kitchens to provide sufficient room for wheelchair users • $100,000 fund for compensating individuals with disabilities who were affected; $10,000 in civil penalty to U.S. • U.S. v. Biafora, (Sept. 2014, N.D. W.Va.) • Lawsuit against developer and affiliated company for FHA and ADA violations in design and construction of 23 residential properties • Barriers include steps leading to building entrances, non-existent or excessively sloped pedestrian routes from apartment units to site amenities, insufficient maneuvering space, high light switches and temperature controls, inaccessible parking

16. DOJ Housing Discrimination Cases • Race/Familial Status Discrimination • U.S. v. Ruth, et al. (N.D. Ohio, August 25, 2014) • Defendants, landlords at three Massillon, Ohio, apartment complexes, agreed to pay $850,000 to settle lawsuits alleging that they discriminated against African-Americans and families • Under terms of settlement, defendants will pay $650,000 in damages and attorneys fees to plaintiffs in related civil suits • $175,000 in damages to 11 additional former residents and employees identified by the United States who had been harmed by the defendants’ discrimination • $25,000 in a civil penalty to the United States

17. DOJ Housing Discrimination Cases • U.S. v. Town of Oyster Bay, et al., (April 2014, EDNY) • U.S. sues town; complaint alleges that two housing programs designed to develop below-market rate housing for first-time homeowners and senior citizens discriminate against African-Americans because the programs give preference to residents of the town, who are predominantly white • DOJ reached settlement with Long Island Housing Partnership, which administered the program • LIHP agreed to injunctive relief that requires LIHP to ensure that the residency preferences it administers are analyzed so they don’t violate the law • LIHP also will provide education and training to localities, banks and individuals on fair housing laws requirements

18. DOJ Housing Discrimination Cases • Familial Status • U.S. v. Zaremba Management Company, Inc., (N.D. Ohio, August 14, 2014) • Department of Justice settled lawsuit filed against manager and owner of Cleveland apartment complex for refusing to rent apartments to families with children • Lawsuit also alleged that defendants had a policy of evicting tenants or asking tenants to relocate if they have children while living at Linden House Apartments • Linden House did not meet requirements for exemption to limit housing to 55 and older • Manager and owner agreed to pay $100,000 -- $90,000 to victims and $10,000 to U.S. in civil penalties • Lawsuit was filed in September 2013

19. DOJ Housing Discrimination Cases • Familial Status • U.S. v. Gutzmer, et al., (Oct. 2014 W.D. Wis.) • Lawsuit against owners and operators of a Whitewater mobile home park for its refusal to allow families with children to live in certain areas of the park • Families excluded from approximately 60 of 230 lots in park • U.S. v. Woodland Garden Apts., et al., (July 2014, N.D. Cal.) • DOJ settles with owners and operators of apartment complex in Fremont, CA, which prohibited children from playing outside in the common grassy areas of the complex and provided that families would be evicted if they violated the rule • Defendants to pay $77,500 to the victims and $2,500 to government as civil penalty • Lawsuit arose out of HUD referral. Five families and fair housing organization Project Sentinel had filed complaints

20. DOJ Housing Discrimination Cases • Sexual harassment/gender discrimination • U.S. v. Southeastern Community and Family Services, Inc., et al., (Dec. 2014, M.D.N.C.) • DOJ files lawsuit against public housing agency that administers the Section 8 voucher program and against two of its employees, alleging that they sexually harassed female voucher program participants and applicants • Alleges that defendants submitted participants and applicants to unwanted sexual comments, sexual touching and other sexual acts, conditioned or offered Section 8 benefits in exchange for sexual acts and took adverse housing actions against those who rebuffed their sexual advances

21. DOJ Housing Discrimination Cases • Sexual Harassment/Gender discrimination • U.S. v. Encore Management Co Inc., et al (S.D. W. Va. Nov. 1, 2014) • Lawsuit against management company and three former employees of an apartment complex in Cross Lanes, West Virginia, alleging that female tenants were subjected to sexual harassment and retaliation • Alleges that district manager and maintenance worker sexually harassed female tenants and site manager failed to take appropriate steps when residents complained • Sexual harassment included entering residences of female tenants without permission or notice, conditioning housing or housing benefits on female tenants’ agreement to engage in sexual acts, taking adverse actions against female residents when they refused sexual advances or reported unwelcome conduct

22. DOJ Housing Discrimination Cases • U.S. v. VanderVennen, et al., (Aug. 2014, W.D. MI) • Grand Rapids landlord agrees to pay $550,000 in damages and terminate manager’s responsibilities • Lawsuit alleged manager sexually harassed female tenants at Alger Meadow Apartments, made unwelcome sexual comments and advances, entered female tenants units without notice or permission, conditioned housing benefits on tenants engaging in sexual acts and took adverse action against those who refused his advances • Fair Housing Center of Greater Grand Rapids brought case to DOJ’s attention • $510,000 to 13 victims; $40,000 to United States

23. DOJ Lending Discrimination Cases • DOJ – Civil Rights Division, Fair Lending Unit of the Housing and Civil Enforcement Section has recovered more than $1 billion for impacted communities and individual borrowers since it was established in February 2010 • U.S. v. Fifth Third Mortgage Company, (Aug. 7, 2014, M.D. Ga.) • Settlement of lawsuit alleging pattern or practice of discrimination on the basis of disability and receipt of public assistance in violation of FHA and Equal Credit Opportunity Act • $1.5 million settlement • Funds go to eligible mortgage loan applicants who were asked to provide a letter from their doctor to document the income they received from SSDI. • Under settlement, Fifth Third will also conduct training of its underwriters and loan officers and will monitor loan applications to ensure practice does not recur

24. DOJ Affordable Housing Lawsuits • U.S. v. Louisiana State Bond Commission, (July 31, 2014, E.D. La.) • Settlement of lawsuit alleging that the Commission violated the FHA and the ADA by adopting a moratorium on affordable housing financing in 2009 • Moratorium blocked financing for a proposed 40-unit affordable housing project known as the “Esplanade” • Twenty “Esplanade” units would provide permanent supportive housing to persons with disabilities • As part of the settlement, the Commission agreed to refrain from further obstructing or delaying financing for the Esplanade and from adopting any future policy that would prevent consideration of affordable housing in New Orleans, including affordable housing for persons with disabilities

25. DOJ Service Members Civil Relief Act Settlement • U.S. v. JP Morgan Chase Bank, Wells Fargo Bank, Citi Residential Lending Inc., Citibank and CitiMortgage, GMAC Mortgage, and BAC Home Loans Servicing (formerly known as Countrywide Home Loans Servicing), February 2015 • DOJ settles with five of nation’s largest mortgage servicers • 952 service members and their co-borrowers are eligible to receive over $123 million for non-judicial foreclosures that violated SCRA • The non-judicial foreclosures took place between Jan. 1, 2006, and April 4, 2012

26. DOJ Religious Land Use Cases • U.S. v. St. Anthony Village, MN, (Dec. 2014, D. Minn.) • Complaint alleged that city of St. Anthony Village violated the Religious Land Use and Institutionalized Persons Act of 2000 by treating an application for a conditional use permit to assemble in the St. Anthony Business Center filed by Abu Huraira Islamic Center on less than equal terms as other, non-religious, conditional use permits for assembly • Sought injunctive relief requiring the city of St. Anthony Village to maintain a worship space in the basement of the St. Anthony Business Center for Abu Huraira • Abu Huraira entered into purchase agreement for St. Anthony Business Center after a three-year search for adequate prayer space; the business center is in the “light industrial” zone of St. Anthony, conditional uses for which included “assemblies, meeting lodges and convention halls” • City Council voted to deny the permit despite the planning staff and planning commission recommending the permit be approved • Resolved in December 2014 with City agreeing to grant permit, to distribute RLUIPA information and to have certain officials undergo training

27. DOJ Criminal Fair Housing Cases • U.S. v. Flanagan, (Feb. 13, 2015, M.D. Tenn.) • Defendant sentenced to federal prison and fined for his role in April 2012 cross burning in front of an interracial family’s home in Minor Hill, Tenn. • Flanagan is a former member of the Church of the National Knights, a KKK affiliate • Two additional defendants will be sentenced in March 2015

28. Idaho Criminal Fair Housing Cases • U.S. v. Bybee, December 1997 • Defendant threatened to kill African-American male and assault Native American female • Defendant didn’t like mixed race couple visiting a friend’s home in Lapwai • Right to occupy dwelling free from interference based on race includes right to entertain individuals of other races in your home • U.S. v. Mauer, et al., May 1998 • Six defendants, ages 16 to 19, conspired to violate rights, including housing rights, of Hispanic residents in Nampa • Number of assaults, acts of intimidation

29. United States v. Keith Gilbert • Gilbert I, 1987 • In December of 1980, Keith Gilbert, an avowed white supremacist, sent racially derogatory and “threatening” correspondence to Susan Smith, a white woman who operated an adoption agency that was trying to place minority children • Defendant charged in a one-count information with violating the criminal component of the Fair Housing Act (there were other felony charges not relevant to the FHA) • Idaho district court dismissed the charge, finding that the connection between the activities of an adoption agency and occupancy of a dwelling was too remote • The Ninth Circuit reversed, noting that the Fair Housing Act is to be interpreted broadly, and held that “the placement of minority children by the director of an adoption agency is a protected activity . . . Since the director is ‘aiding or encouraging’ minorities in the occupancy of dwellings.”

30. United States v. Keith Gilbert • Gilbert II, 1989 • After remand, Gilbert was convicted at trial • On appeal after trial, he contended that the evidence was insufficient to prove a threat of force, a required element of the criminal provision of the fair housing act, because no single piece of correspondence threatened Ms. Smith • The Ninth Circuit affirmed the conviction, holding that threats should be considered in light of the entire factual context and the court may look at surrounding events as well as the reaction of listeners; accordingly the district court was correct in looking at the mailings as a whole

31. How to Reach the USAO Three locations --Boise – 208-334-1211 (Amy Howe) --CDA – 208-667-6568 (Traci Whelan) --Pocatello – 208-478-4166 (Jack Haycock)

32. Questions?