I was giving serious consideration to blogging on Stragapede v. City of Evanston, Illinois. After all, it isn’t very far from where I grew up, and I have all kinds of family connections to Northwestern University. So, I spent a lot of time in Evanston, including attending many a Northwestern University athletic event. However, Robin Shea just published an excellent write up of the case, and so I will leave it for her to analyze. It is definitely worth a read and can be found here. That left me with having to blog about something else. Ultimately, I decided to blog about a HUD conciliation agreement under the Fair Housing Act between an individual, the Fair Housing Advocates of Northern California and Schultz Investment Company et. al. Basically, the Respondents ran into problems with respect to emotional support animals/service dogs. Instead of taking it to trial, Respondents entered into a conciliation agreement. I thought it might be worthwhile to go over the terms. The blog entry is divided into terms of the conciliation agreement and takeaways. Since the structure of the blog entry is such and the length is so short, I’m figuring everyone is going to read the whole thing.
Highlights of the Conciliation Agreement
- The agreement extends for three years.
- A total of $71,000 was paid out to two different plaintiffs.
- Within 90 days, the Respondents have to create and implement a reasonable accommodation and modification policy consistent with the Joint Statements of HUD and the Department of Justice on Reasonable Accommodations under the Fair Housing Act and Reasonable Modifications under the Fair Housing Act. That statement can be found here. What is curious is that the joint statement, from my read anyway, does not deal with emotional support animals and service dogs at all. Rather, it just deals with general obligations under the ADA and the Fair Housing Act. There is a document from the Housing and Urban Development Department talking about emotional support animal and service dogs that can be found here, and it is surprising that it doesn’t get a mention in the conciliation agreement.
- The policy the defendant comes up with has to explicitly acknowledge and advise employees, tenants, and prospective tenants that an emotional support or companion animal qualifies as a reasonable accommodation under the Fair Housing Act.
- Reasonable accommodation and reasonable modification requests must be consistently recorded and responded to in a timely manner.
- Documentation of requests for reasonable accommodations or modifications will show whether medical verification was necessary or whether the disability was obvious and apparent as well as indicate when the defendant provided a written response to each request.
- The policy also will say that reasonable accommodation and modification request can be made orally or in writing and that Respondents have to give appropriate consideration to requests even where the requester does not use the designated form.
- The policy will make clear that verification of disability may come from a doctor or other medical professional such as a therapist, physician’s assistant, or nurse, or from a counselor, social worker, peer support group, a non-medical service agency, or a reliable third-party (emphasis added), who is in a position to know about the individual’s disability.
- To request an accommodation or modification, the policy will make clear that an individual does not need to mention the Fair Housing Act or use the phrase “reasonable accommodation,” or “reasonable modification.” That is, MAGIC words are not required.
- Leases must be redone within 90 days to reflect ¶ ¶ 1-8 above.
- Within 90 calendar days, Respondents have to create and implement a form complying with the Fair Housing Act and make that form readily available to all applicants and current and future tenants. That form must be available at all leasing offices, included in application packets, and a copy provided to new tenants along with a copy of the executed lease.
- Requests for reasonable accommodations and reasonable modification can be made verbally and the form is not required. However, there needs to be a written record of every request for reasonable accommodations or reasonable modifications.
- Respondents agreed to track all requests for reasonable accommodations and/or reasonable modifications in an Excel spreadsheet and furnish that sheet to HUD on annual basis.
- Receptionists, all front office staff, property managers, maintenance personnel, staff participating in making decisions on reasonable accommodations and/or reasonable modifications, and all other staff members interacting with tenants and/or applicants have to attend training sessions on fair housing lasting at least three hours at yearly intervals for two years. The first training session to occur within 90 days and the second one to occur by September 30, 2018. If the training is done by someone other than HUD, HUD will have to approve that training.
- Respondents have to post HUD’s assistance animal poster at all leasing offices and at all trash/recycling areas. If the posters are removed or vandalized, Respondents have to promptly replace the posters with clean copies.
- Respondents have to display the HUD fair housing poster in all leasing offices.
- Within 30 days of the effective date of the agreement, Respondents have to inform all of their agents and employees responsible for compliance with the conciliation agreement the terms of the agreement and provide a person with a copy of the agreement.
- Respondents agreed to submit to monitoring by HUD.
- It is really curious why the HUD publication on service animals and assistance animal for people with disabilities in housing and HUD-funded programs does not get a mention. Even so, that is something you definitely want to look at.
- Magic words are not required!!!!!!!!!!!
- Reasonable accommodations and reasonable modifications under the Fair Housing Act encompass different meanings. Even so, for an attorney familiar with the ADA, that shouldn’t present a problem whatsoever since the term reasonable modifications under title III of the ADA, would encompass both Fair Housing Act terms.
- While the Fair Housing Act does allow you to get documentation to determine whether the tenant has a disability, §I8 of this conciliation agreement casts a pretty broad net, much further than the ADA, as to the type of provider that can document the disability.
- While Respondents did not admit liability, they did pay out $71,000 not to mention what they paid their attorneys in defending the case to this point.
- I find it curious that the conciliation agreement mandates an Excel spreadsheet as one would think that there would be all kinds of possibilities that could be used with respect to dealing with the data associated with reasonable accommodation requests. Regardless, documentation is critical.
- Interactive process!!
- Did I say MAGIC words not required?
- Training is always important.