Court Finds Seattle Based Developer Violated

Accessibility Laws At Montana Apartment Complex

In an order issued at the end of November, federal judge Donald Molloy found that Seattle based American Capital Development, Inc., its principal owners, Roger Kuula and Jon Wood, architect Ray Terry and their affiliated companies violated the rights of the disabled by failing to comply with the accessibility requirements of federal and state fair housing laws at Wildflower Apartments in Missoula. The project is a 96 unit apartment complex that opened in 1993. The owners received more than $370,000 in tax credits from the Montana Board of Housing as financing, conditioned in part on their promise to fully comply with the Fair Housing Act. The case is expected to continue to trial on the issue of damages and what can be done to correct the loss of accessible housing caused by the developer's violations of the laws, as well as on claims of refusal to rent and failure to accommodate person with disabilities.

The ruling comes in a lawsuit filed last year by Montana Fair Housing, a statewide fair housing group, Missoula-based Summit Independent Living Center, a tenant at the Wildflower complex and a local resident who uses a wheelchair and applied to live there. The federal court’s decision is only the second in the country, and the first in the Western United States, to establish that a project’s owners and developers violated the accessibility requirements of federal law. Before the order on Tuesday, there had been no court decisions concerning violations of the corresponding accessibility provisions under Montana’s Human Rights Act.

According to Sue Fifield, executive director of Montana Fair Housing, the judge’s order is an important victory for persons with disabilities and all Montanans who support equal housing opportunity. "I can only echo what Bill Lann Lee, the Assistant U.S. Attorney General for Civil Rights said in a similar case recently, that ‘"People with disabilities have found themselves locked out of communities because they cannot find accessible housing and there must be a strong commitment to ensure that designers and builders meet the requirements of the Fair Housing Act’ – especially here in Montana – ‘so that persons with disabilities have the opportunity to find the housing they need.'" According to Fifield, "the accessibility requirements of the fair housing laws are modest, but their impact for people with disabilities is tremendous and the federal court’s recent order makes clear that these rights can and will be enforced."

In their lawsuit, the plaintiffs asked for compensatory and punitive damages, an order requiring all ground floor units to be made accessible, and an injunction prohibiting the defendants from failing to design or construct residential properties in compliance with the law. The case also involves two other large Montana projects, Creekside Apartments in Missoula and Shiloh Glen in Billings built by Kuula and Wood and their affiliates and partly financed by an additional $730,000 in tax credits allocated by the state, as well as a $7.2 million revenue bond obtained through the City of Missoula.

Montana Fair Housing began investigating at Wildflower after learning that the elderly mother of one of the tenants had to be carried in and out of her home because she uses a wheelchair. SUMMIT Independent Living Center immediately helped out and arranged to install a temporary ramp at one of the Wildflower buildings. Inspections at the site by Montana Fair Housing indicated that the developers had failed to meet minimum accessibility requirements, not only with access to the apartments, but also in providing reachable heating and environmental controls and electrical outlets, accessible doors, and useable common areas. Further investigation indicated that some of the same problems were present at Creekside Apartments in Missoula and Shiloh Glen Apartments in Billings, built and managed by the same owners and companies.

Tim Kelly, the attorney who argued the plaintiffs’ case in federal court, explained that each year, Montana only receives a limited number of tax credits from the federal government to use in housing development. Those three projects used up more than one-third of those credits for the state in the years they were built. "All developers of buildings with four or more units must make sure they meet the accessibility requirements under fair housing laws," Kelly said, "but the problem with lack of access is magnified when even housing built under these special programs fails the test."

An FYI for Consumers and Providers

Because of the number of inquiries from consumers and providers about the definition of a service animal and what obligations exist on both sides to request and/or implement an accommodation for a service animal, Montana Fair Housing is offering the following guidance.

The following is a synopsis of discussions with our attorney, legal representation from the Department of Housing and Urban Development, and review of case law. This is not a formal legal opinion, but instead suggested guidance to utilize in reviewing requests for Reasonable Accommodations in regards to service animals. As always, please feel free to contact Montana Fair Housing and/or the Department of Housing and Urban Development with any questions, comments and/or concerns you may have in regards to this and other fair housing issues.

Montana Fair Housing often mediates accommodation and/or modification requests and, if unable to provide the consumer and/or provider with needed information, we can either refer the issue to appropriate sources or secure the information from the appropriate source.

Hopefully, the information below will assist providers in determining their obligations to allow a request for a service animal and assist consumers in requesting an accommodation.

• Requiring insurance coverage for a service animal:

The law prohibits imposition of additional burdens on the residency of a person with a disability if those tenancy provisions would subject that person to different and/or more adverse treatment than a similarly situated person without a disability. Imposing an additional term such as insurance coverage for a service animal would subject a person with a disability to different and/or adverse treatment because of their disability.

A housing provider can enforce the same conditions of tenancy against a person with a disability as are imposed on persons without disabilities. For example, the lease may contain a clause that the tenant is liable for harm caused by his or her negligence. The housing provider would enforce this clause against a tenant who is using a barbecue that malfunctions and causes a fire damaging to another tenant’s property and/or person. A housing provider enforces the same provision against a tenant with a disability who fails to control his/her service animal. The key is uniform treatment and enforcement of terms and conditions for which a reasonable accommodation is not required.

• Requiring additional security deposits and/or increased rent for a service animal:

The law prohibits imposition of additional burdens on the residency of a person with a disability if those tenancy provisions would subject that person to different and/or more adverse treatment than a similarly situated person without a disability. Imposing an additional term such as a security deposit and/or increased rent for a service animal would subject a person with a disability to different and/or adverse treatment because of their disability.

These charges are not permitted, though deductions from the security deposit for any reasonably necessary additional cleaning work would be permitted, if also charged against tenants without disabilities who leave their units in a condition which requires such additional cleaning.

• Requiring proof of current inoculations for service animals:

Requiring proof of inoculation of a service animal would likely be permitted under the following circumstances. A lease agreement includes provisions requiring tenants to abide by all applicable state and local laws. The housing provider enforces these provisions against tenants with respect to storage and/or use of vehicles, equipment, firearms, etc., on the subject premises. There is a local law requiring inoculation and/or licensing of all animals. The housing provider requires proof that the animal meets the local requirements. An alternative rationale for this provision may be that no accommodation that creates a material risk to health and/or safety is reasonable. Proof of inoculation establishes that there is no material risk to health and/or safety in respect to inoculations.

• Service animal vs. companion animal vs. comfort animal:

A companion animal and/or comfort animal is a service animal. If there is substantiation of the disability and the need for the reasonable accommodation that is represented to be the presence of that animal in order for the person with the disability to enjoy equal opportunity, the companion/comfort animal is considered a service animal.

• Requiring a service animal have specialized training and the tenant to submit verification of training:

A service animal does not have to receive specialized training in order to be considered a service animal. A service animal need only exhibit the ability to serve the person with the disability as is required for that person’s needs.

• Definitions:

Medical Professional defined: A medical professional is defined broadly under the EEOC employment guidance regarding reasonable accommodation requests, at least for purposes of putting one on notice of the request for accommodation. Medical professionals can include social workers, paraprofessionals, chiropractors, etc. A request for a reasonable accommodation and/or modification triggers an affirmative duty on the part of the housing provider to exchange information with the consumer.

Case law on the issue of questioning the credentials of a medical professional to submit verification of a disability and/or the need for a reasonable accommodation is not completely developed, at least to the advantage of the housing provider. However, if, for example, a tenant with a mental disability submits a request for an accommodation that is verified by a chiropractor, the housing provider may seek additional information. The housing provider can request further verification of the need for the accommodation and further verification that the tenant is a qualified person with a disability. Again, a request for an accommodation and/or a modification, at the very least, puts the housing provider on notice that the need for an accommodation and/or a modification may exist. Denying the request without further review of information could lead to a violation of fair housing provisions.

A housing provider cannot deny the right of a tenant whose visitor/s may have disabilities from bringing his/her service animal when visiting the tenant on-site.

Definition of Disability: A disability is a physical or mental impairment which substantially limits one or more of a person’s major life activities. The person requesting an accommodation and/or modification must have a record of having such an impairment or be regarded as having such an impairment. This definition does not include current, illegal use of or addiction to a controlled substance. An individual shall not be considered to have a disability solely because that individual is a transvestite.

Definition of Major Life Activities includes, but is not limited to, activities such as: Caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Accommodation: An exception to the rules and regulations allowing a person with a disability full use or enjoyment of the premises.

Modification: Right to alter the physical premises to overcome obstacles interfering with the use of a dwelling unit.

• What are the most common areas requiring accommodations and/or modifications requests?

Architectural accessibility: Parking, Entrances, Kitchens, Bathrooms, Hardware, Path of travel within a dwelling, Full access to common use areas, Environmental controls.

Programs: Changes in rules, policies, practices or services so that a person with a disability can participate as fully in activities related to housing as could a person without a disability. Examples: a request for a service animal or foregoing an eviction to allow a case manager an opportunity to implement a treatment plan assisting the consumer with lease compliance.

• Who is covered

1. Persons with mobility impairments;
2. Persons with sensory losses - deafness and/or blindness;
3. Persons with mental disabilities - cognitive disabilities, head injuries, cerebral palsy;
4. Persons with environmental sensitivities (MCS);
5. Persons with mental illnesses;
6. Persons with hidden disabilities - epilepsy, heart conditions, diabetes, chronic fatigue syndrome, learning disabilities, cancer, AIDS/HIV, etc.;
7. Persons with age related disabilities - arthritis, dementia, heart conditions, etc.;
8. Persons who are recovering alcoholics and/or drug addicts.

Disabilities can be temporary such as pregnancy, recovering from surgery and/or an injury, etc.

• What are the exemptions:

Persons currently using illegal, controlled substances, persons who have been convicted of illegal manufacture and/or distribution of controlled substances, and/or persons who pose a direct threat to the health and safety of others.

• Exceptions:

If the housing provider can demonstrate that providing an accommodation or modification would impose an "undue burden" and/or constitute a "fundamental alteration" in the service provided by the housing provider.

• Can the housing provider ask about a tenant's disability or need for an accommodation and/or modification?

A housing provider cannot ask about a disability. A consumer must request the accommodation/modification and there is no limit on the number of accommodations and/or modifications requested and/or the number of times a consumer may request these needs. A housing provider cannot impose an accommodation and/or modification on a consumer who does not want one. A consumer is entitled to an accommodation and/or modification that affords equal opportunities to use and enjoy a dwelling, even if the accommodation and/or modification provided is not the one preferred by the consumer.

• Can the provider ask for proof of the disability and/or need for the accommodation/modification:

A housing provider can ask for verification of the disability and the need for the adaptation in writing from a qualified professional. The verification of the disability does not have to include a statement of what the disability is and the consumer does not have to provide and/or disclose medical records.

• Is the consumer or provider responsible for the financial burden necessary to provide adaptation?

If the change is architectural, the consumer may be required to pay for reasonable modifications. Providers and consumers should check with Montana Fair Housing and/or other resources such as the Department of Housing and Urban Development prior to requiring the consumer pay for the modifications.

The provider can, under certain circumstances, request the consumer to create an interest bearing escrow account with deposits equal to the amount necessary to restore the dwelling to original condition, if adaptations made would interfere with the use and enjoyment of the unit by the next consumer. Any interest accrued from such an account shall go to the tenant. If the change is programmatic, the consumer cannot be charged directly and/or indirectly for the change in service.

HUD disclaimer notice: The work that provided the basis for this publication was supported by funding under a grant awarded by the US Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The authors and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication.

Court Finds Seattle Based Developer Violated

Accessibility Laws At Montana Apartment Complex

In an order issued at the end of November, federal judge Donald Molloy found that Seattle based American Capital Development, Inc., its principal owners, Roger Kuula and Jon Wood, architect Ray Terry and their affiliated companies violated the rights of the disabled by failing to comply with the accessibility requirements of federal and state fair housing laws at Wildflower Apartments in Missoula. The project is a 96 unit apartment complex that opened in 1993. The owners received more than $370,000 in tax credits from the Montana Board of Housing as financing, conditioned in part on their promise to fully comply with the Fair Housing Act. The case is expected to continue to trial on the issue of damages and what can be done to correct the loss of accessible housing caused by the developer's violations of the laws, as well as on claims of refusal to rent and failure to accommodate person with disabilities.

The ruling comes in a lawsuit filed last year by Montana Fair Housing, a statewide fair housing group, Missoula-based Summit Independent Living Center, a tenant at the Wildflower complex and a local resident who uses a wheelchair and applied to live there. The federal court’s decision is only the second in the country, and the first in the Western United States, to establish that a project’s owners and developers violated the accessibility requirements of federal law. Before the order on Tuesday, there had been no court decisions concerning violations of the corresponding accessibility provisions under Montana’s Human Rights Act.

According to Sue Fifield, executive director of Montana Fair Housing, the judge’s order is an important victory for persons with disabilities and all Montanans who support equal housing opportunity. "I can only echo what Bill Lann Lee, the Assistant U.S. Attorney General for Civil Rights said in a similar case recently, that ‘"People with disabilities have found themselves locked out of communities because they cannot find accessible housing and there must be a strong commitment to ensure that designers and builders meet the requirements of the Fair Housing Act’ – especially here in Montana – ‘so that persons with disabilities have the opportunity to find the housing they need.'" According to Fifield, "the accessibility requirements of the fair housing laws are modest, but their impact for people with disabilities is tremendous and the federal court’s recent order makes clear that these rights can and will be enforced."

In their lawsuit, the plaintiffs asked for compensatory and punitive damages, an order requiring all ground floor units to be made accessible, and an injunction prohibiting the defendants from failing to design or construct residential properties in compliance with the law. The case also involves two other large Montana projects, Creekside Apartments in Missoula and Shiloh Glen in Billings built by Kuula and Wood and their affiliates and partly financed by an additional $730,000 in tax credits allocated by the state, as well as a $7.2 million revenue bond obtained through the City of Missoula.

Montana Fair Housing began investigating at Wildflower after learning that the elderly mother of one of the tenants had to be carried in and out of her home because she uses a wheelchair. SUMMIT Independent Living Center immediately helped out and arranged to install a temporary ramp at one of the Wildflower buildings. Inspections at the site by Montana Fair Housing indicated that the developers had failed to meet minimum accessibility requirements, not only with access to the apartments, but also in providing reachable heating and environmental controls and electrical outlets, accessible doors, and useable common areas. Further investigation indicated that some of the same problems were present at Creekside Apartments in Missoula and Shiloh Glen Apartments in Billings, built and managed by the same owners and companies.

Tim Kelly, the attorney who argued the plaintiffs’ case in federal court, explained that each year, Montana only receives a limited number of tax credits from the federal government to use in housing development. Those three projects used up more than one-third of those credits for the state in the years they were built. "All developers of buildings with four or more units must make sure they meet the accessibility requirements under fair housing laws," Kelly said, "but the problem with lack of access is magnified when even housing built under these special programs fails the test."

An FYI for Consumers and Providers

Because of the number of inquiries from consumers and providers about the definition of a service animal and what obligations exist on both sides to request and/or implement an accommodation for a service animal, Montana Fair Housing is offering the following guidance.

The following is a synopsis of discussions with our attorney, legal representation from the Department of Housing and Urban Development, and review of case law. This is not a formal legal opinion, but instead suggested guidance to utilize in reviewing requests for Reasonable Accommodations in regards to service animals. As always, please feel free to contact Montana Fair Housing and/or the Department of Housing and Urban Development with any questions, comments and/or concerns you may have in regards to this and other fair housing issues.

Montana Fair Housing often mediates accommodation and/or modification requests and, if unable to provide the consumer and/or provider with needed information, we can either refer the issue to appropriate sources or secure the information from the appropriate source.

Hopefully, the information below will assist providers in determining their obligations to allow a request for a service animal and assist consumers in requesting an accommodation.

• Requiring insurance coverage for a service animal:

The law prohibits imposition of additional burdens on the residency of a person with a disability if those tenancy provisions would subject that person to different and/or more adverse treatment than a similarly situated person without a disability. Imposing an additional term such as insurance coverage for a service animal would subject a person with a disability to different and/or adverse treatment because of their disability.

A housing provider can enforce the same conditions of tenancy against a person with a disability as are imposed on persons without disabilities. For example, the lease may contain a clause that the tenant is liable for harm caused by his or her negligence. The housing provider would enforce this clause against a tenant who is using a barbecue that malfunctions and causes a fire damaging to another tenant’s property and/or person. A housing provider enforces the same provision against a tenant with a disability who fails to control his/her service animal. The key is uniform treatment and enforcement of terms and conditions for which a reasonable accommodation is not required.

• Requiring additional security deposits and/or increased rent for a service animal:

The law prohibits imposition of additional burdens on the residency of a person with a disability if those tenancy provisions would subject that person to different and/or more adverse treatment than a similarly situated person without a disability. Imposing an additional term such as a security deposit and/or increased rent for a service animal would subject a person with a disability to different and/or adverse treatment because of their disability.

These charges are not permitted, though deductions from the security deposit for any reasonably necessary additional cleaning work would be permitted, if also charged against tenants without disabilities who leave their units in a condition which requires such additional cleaning.

• Requiring proof of current inoculations for service animals:

Requiring proof of inoculation of a service animal would likely be permitted under the following circumstances. A lease agreement includes provisions requiring tenants to abide by all applicable state and local laws. The housing provider enforces these provisions against tenants with respect to storage and/or use of vehicles, equipment, firearms, etc., on the subject premises. There is a local law requiring inoculation and/or licensing of all animals. The housing provider requires proof that the animal meets the local requirements. An alternative rationale for this provision may be that no accommodation that creates a material risk to health and/or safety is reasonable. Proof of inoculation establishes that there is no material risk to health and/or safety in respect to inoculations.

• Service animal vs. companion animal vs. comfort animal:

A companion animal and/or comfort animal is a service animal. If there is substantiation of the disability and the need for the reasonable accommodation that is represented to be the presence of that animal in order for the person with the disability to enjoy equal opportunity, the companion/comfort animal is considered a service animal.

• Requiring a service animal have specialized training and the tenant to submit verification of training:

A service animal does not have to receive specialized training in order to be considered a service animal. A service animal need only exhibit the ability to serve the person with the disability as is required for that person’s needs.

• Definitions:

Medical Professional defined: A medical professional is defined broadly under the EEOC employment guidance regarding reasonable accommodation requests, at least for purposes of putting one on notice of the request for accommodation. Medical professionals can include social workers, paraprofessionals, chiropractors, etc. A request for a reasonable accommodation and/or modification triggers an affirmative duty on the part of the housing provider to exchange information with the consumer.

Case law on the issue of questioning the credentials of a medical professional to submit verification of a disability and/or the need for a reasonable accommodation is not completely developed, at least to the advantage of the housing provider. However, if, for example, a tenant with a mental disability submits a request for an accommodation that is verified by a chiropractor, the housing provider may seek additional information. The housing provider can request further verification of the need for the accommodation and further verification that the tenant is a qualified person with a disability. Again, a request for an accommodation and/or a modification, at the very least, puts the housing provider on notice that the need for an accommodation and/or a modification may exist. Denying the request without further review of information could lead to a violation of fair housing provisions.

A housing provider cannot deny the right of a tenant whose visitor/s may have disabilities from bringing his/her service animal when visiting the tenant on-site.

Definition of Disability: A disability is a physical or mental impairment which substantially limits one or more of a person’s major life activities. The person requesting an accommodation and/or modification must have a record of having such an impairment or be regarded as having such an impairment. This definition does not include current, illegal use of or addiction to a controlled substance. An individual shall not be considered to have a disability solely because that individual is a transvestite.

Definition of Major Life Activities includes, but is not limited to, activities such as: Caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Accommodation: An exception to the rules and regulations allowing a person with a disability full use or enjoyment of the premises.

Modification: Right to alter the physical premises to overcome obstacles interfering with the use of a dwelling unit.

• What are the most common areas requiring accommodations and/or modifications requests?

Architectural accessibility: Parking, Entrances, Kitchens, Bathrooms, Hardware, Path of travel within a dwelling, Full access to common use areas, Environmental controls.

Programs: Changes in rules, policies, practices or services so that a person with a disability can participate as fully in activities related to housing as could a person without a disability. Examples: a request for a service animal or foregoing an eviction to allow a case manager an opportunity to implement a treatment plan assisting the consumer with lease compliance.

• Who is covered:

1. Persons with mobility impairments;
2. Persons with sensory losses - deafness and/or blindness;
3. Persons with mental disabilities - cognitive disabilities, head injuries, cerebral palsy;
4. Persons with environmental sensitivities (MCS);
5. Persons with mental illnesses;
6. Persons with hidden disabilities - epilepsy, heart conditions, diabetes, chronic fatigue syndrome, learning disabilities, cancer, AIDS/HIV, etc.;
7. Persons with age related disabilities - arthritis, dementia, heart conditions, etc.;
8. Persons who are recovering alcoholics and/or drug addicts.

Disabilities can be temporary such as pregnancy, recovering from surgery and/or an injury, etc.

• What are the exemptions:

Persons currently using illegal, controlled substances, persons who have been convicted of illegal manufacture and/or distribution of controlled substances, and/or persons who pose a direct threat to the health and safety of others.

• Exceptions:

If the housing provider can demonstrate that providing an accommodation or modification would impose an "undue burden" and/or constitute a "fundamental alteration" in the service provided by the housing provider.

• Can the housing provider ask about a tenant's disability or need for an accommodation and/or modification?

A housing provider cannot ask about a disability. A consumer must request the accommodation/modification and there is no limit on the number of accommodations and/or modifications requested and/or the number of times a consumer may request these needs. A housing provider cannot impose an accommodation and/or modification on a consumer who does not want one. A consumer is entitled to an accommodation and/or modification that affords equal opportunities to use and enjoy a dwelling, even if the accommodation and/or modification provided is not the one preferred by the consumer.

• Can the provider ask for proof of the disability and/or need for the accommodation/modification:

A housing provider can ask for verification of the disability and the need for the adaptation in writing from a qualified professional. The verification of the disability does not have to include a statement of what the disability is and the consumer does not have to provide and/or disclose medical records.

• Is the consumer or provider responsible for the financial burden necessary to provide adaptation?

If the change is architectural, the consumer may be required to pay for reasonable modifications. Providers and consumers should check with Montana Fair Housing and/or other resources such as the Department of Housing and Urban Development prior to requiring the consumer pay for the modifications.

The provider can, under certain circumstances, request the consumer to create an interest bearing escrow account with deposits equal to the amount necessary to restore the dwelling to original condition, if adaptations made would interfere with the use and enjoyment of the unit by the next consumer. Any interest accrued from such an account shall go to the tenant. If the change is programmatic, the consumer cannot be charged directly and/or indirectly for the change in service.

HUD disclaimer notice: The work that provided the basis for this publication was supported by funding under a grant awarded by the US Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The authors and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication.

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