Fair Housing Quarterly

Transcription

1 Fair Housing Quarterly fall 2016 & Winter 2017 Editors: Cristela E. Nunez Roberto Gonzalez Contributing Writers: Christopher Schmidt, Sarah Medina, Michael Flannery Chief Executive Officer Marie M. Flannery IFHMB is a private non-profit agency which serves as an intermediary to resolve issues related to housing discrimination, homeownership sustainability, rental complaints, and disputes in court with the goal of empowering individuals and enriching the communities we serve. TTY: (English) (Spanish) IN THIS ISSUE Guidance on LEP 1 Domestic Violence Protections 4 Assistance Animals 6 Medical Marijuana 7 Financial Workshops 8 Homebuyer Education Seminars 9 HUD Guidance on Limited English proficiency (lep) By Christopher Schmidt Recently, HUD (The Department of Housing and Urban Development) provided new guidance on Limited English Proficiency (LEP) that addresses how the Fair Housing Act would apply to claims of housing discrimination brought by people who are alleging discrimination by housing providers because they do not communicate proficiently in English. A person is considered to have LEP if they do not speak English as their primary language and have a limited ability to read, speak, write or understand English. Until recently, the obligations for LEP were only directed toward housing providers that were recipients of federal funding. Title VI of The Civil Rights Act of 1964 and Executive Order require federal agencies and any recipient of federal funding to take reasonable steps to ensure meaningful access for LEP individuals to their programs or services. HUD s new guidance addresses the private sector and the management practices of privately owned apartments/ housing units. HUD s new guidance clarifies that housing providers, no matter their source of funding, are prohibited from using limited English proficiency selectively or as an excuse for intentional discrimination. The guidance also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect. The new guidance does not go so far as to create a new protected class for LEP people. However, HUD acknowledges that there is a link between LEP and certain racial and national origin groups. An LEP based complaint about housing continued on page 2

2 Hud Guidance on: limited English Proficiency (LEP) continued from page 1 discrimination would then be categorized as national origin or race discrimination. What does this new guidance mean? HUD s guidance states that housing providers cannot have a blanket policy requiring all residents to speak English. Housing providers cannot post advertisements that say all tenants need to speak English, or immediately turn away applicants who are not fluent in English. Housing providers cannot create or enforce a rule that gives preference to people who speak a particular language over others. Applicants and tenants who face this type of treatment from their housing provider can now file a housing discrimination complaint with HUD. The biggest question that emerges from the new guidance is whether or not housing providers must provide translation services to LEP people who apply or reside at their properties. HUD briefly mentions translation services in their guidance stating: If the housing provider or resident can access free or lowcost language assistance services, any cost basedjustification for refusing to deal with LEP persons would also be immediately suspect. The language cited came from a case where an applicant had found a third party willing to provide free translation services and the housing provider repeatedly refused to accept the translation service and turned the applicant away. In this instance, a court found that the housing provider s argument that providing translation services was cost prohibitive to be unpersuasive because of their actions in refusing the services of the third party. HUD requires each property to undergo an individual assessment of the types of translation services available within the community and if these services or options are not cost prohibitive, then the housing provider should utilize those services when working with an LEP applicant or resident. The new guidance states that a housing provider cannot automatically turn away an applicant because of their limited ability to read, comprehend, or speak English without sufficient justification that 2

3 Hud Guidance on: limited English Proficiency (LEP) continued from page 2 is more than a pretext for race or national origin discrimination. In the Inland Empire region, the three most common spoken languages other than English are Spanish, Tagalog, and Chinese. A survey conducted in 2012 found 643,384 people living in San Bernardino County spoke Spanish in their home. There were 26,008 who spoke Tagalog at home and 22,741 individuals who spoke Chinese in their home. These numbers indicate that there is a significant percentage of the population within the county who speak English as a second language. Based on these statistics, many housing providers in the region are likely to encounter LEP individuals applying to live in their complexes. Housing providers should then be prepared to handle the needs of these people as required by the new HUD guidelines. Ultimately, HUD s new guidance on the Fair Housing Visit Our Offices Act protections for LEP individuals looks to make sure every person can live where they choose free from discrimination. Each property should have an internal plan or policy on how to handle LEP applicants and residents. Housing providers should review their rules and marketing materials to make sure they are in compliance with the new LEP guideline. Tenants and prospective tenants who are denied the opportunity to live at a property because of their limited English skills now have the option to file a fair housing complaint with HUD for national origin or race discrimination. To learn more about LEP rights and to determine if your property is subject to federal regulations in regards to LEP access, please call IFHMB at Ext. 175 Inland Fair Housing and Mediation Board has offices located throughout the counties of San Bernardino, Riverside and Imperial. Please contact or visit our offices if you have fair housing or landlord-tenant questions and concerns. Ontario 1500 South Haven Ave., Suite 100 Ontario, CA Open: M, T, W, Th, F Phone: info@ifhmb.com San Bernardino 330 North D St, Suite 357 San Bernardino, CA Open: M, T, W**, Th, F (**Hours may vary on Wednesdays) Phone: sanbernardino@ifhmb.com Victorville Civic Drive, # 225 Victorville, CA Open: M, T, W, Th, F Phone: victorville@ifhmb.com Barstow 222 East Main Street, Suite 211 Barstow, CA Open: Th**, F (**Open Thursdays 1p-5p) Phone: barstow@ifhmb.com Indio Oasis St. Indio, CA Open: M, T, Th, F Closed on Wednesdays Phone: indio@ifhmb.com El Centro 444 South 8th St., Suite C-1A El Centro, CA Open: M, T, W, Th, F Phone: elcentro@ifhmb.com 3

4 HUD ANNOUNCES NEW PROTECTIONS FOR VICTIMS OF HARASSMENT AND SURVIVORS OF DOMESTIC VIOLENCE WASHINGTON The U.S. Department of Housing and Urban Development recently announced that it is publishing a final rule formalizing legal standards under the Fair Housing Act for sexual and other forms of harassment in housing. In addition, HUD is issuing Fair Housing Act guidance on local 'nuisance ordinances' that may lead to housing discrimination against survivors of domestic violence and other persons in need of emergency services. HUD is issuing its Nuisance Guidance as the country marks the 22nd anniversary of the Violence Against Women Act (VAWA). Through the VAWA 2013 reauthorization, protections have been expanded to nearly all HUD programs. Previously, only residents of public housing and Section 8 tenantbased and project-based programs were covered. HUD s final Harassment Rule is titled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act. HUD and courts have long held that harassment in housing or housing-related transactions on the basis of race, color, national origin, religion, sex, disability, and familial status is prohibited under the Fair Housing Act. The final rule specifies how HUD will evaluate claims of hostile environment and quid pro quo harassment in both private and publicly-assisted housing. HUD s Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services is intended to inform state and local governments, as well as private and public housing providers, as to how HUD will assess nuisance or crime-free housing ordinances, policies, or practices alleged to be discriminatory under the Fair Housing Act. These local ordinances may be used to evict domestic violence survivors and others who seek 43

5 HUD ANNOUNCES NEW PROTECTIONS FOR VICTIMS OF HARASSMENT AND SURVIVORS OF DOMESTIC VIOLENCE Continued from Page 4 police or emergency assistance. On the 22nd anniversary of the Violence Against Women Act, HUD makes it clear that no one should have to choose between calling and being evicted, said HUD Secretary Julián Castro. A home should be a sanctuary where everyone can live without the threat of violence or harassment. The actions we take today will work together to protect the housing rights of victims of harassment and survivors of domestic violence. Harassment in housing threatens a resident s safety and privacy in her own home. In HUD s experience enforcing the Fair Housing Act, lowincome women often racial and ethnic minorities and persons with disabilities may be particularly vulnerable to sexual harassment in housing. HUD s final rule on harassment in housing includes: Formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context. Quid Pro Quo Harassment involves subjecting a person to an unwelcome request or demand and making submission to the request or demand a condition related to the person s housing. Hostile Environment Harassment involves subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person of the right to use and enjoy the housing. Clarification as to when housing providers and other covered entities or individuals may be held directly or vicariously liable under the Fair Housing Act for illegal harassment or other discriminatory housing practices. HUD aggressively pursues violations involving harassment in housing, including, most recently, charging St. Louis landlords with sexual harassment against a female tenant. The U.S. Department of Justice has filed a lawsuit against these landlords. The Nuisance Ordinance Guidance addresses ordinances that penalize residents for a small number of 911 calls to police, even when a person is in need of protection from domestic violence or another crime. Nuisance ordinances often require or allow landlords to evict residents in such circumstances, thereby discouraging victims from reporting domestic abuse or other crimes and obtaining the emergency police and medical assistance they need. HUD investigated and resolved a complaint brought by a woman living in Norristown, Pennsylvania, who had been subjected to domestic violence by her ex-boyfriend. Police warned her that if she made one more 911 call, she and her young daughter would be evicted from their home. The Norristown ordinance operated under a three strike policy, allowing no more than two calls to 911 for help. As a result, the woman was too afraid to call the police when her ex-boyfriend returned to her home and stabbed her. A neighbor called the police. A few days after the woman s release from the hospital, she was served with eviction papers pursuant to the local nuisance ordinance. As a part of the settlement, the city repealed the ordinance. These types of ordinances violate the Fair Housing Act when they have an unjustified discriminatory effect or are enacted or enforced to intentionally discriminate because of a protected characteristic. Anyone who believes they have experienced discrimination in housing may file a complaint by contacting IFHMB s office at: (800) ext source: press_releases_media_advisories/2016/hudno_

6 Not all Assistance animals Bark The Fair Housing Act and the American with Disabilities Act (ADA ) have shaped the definitions of assistance animals. Assistance animals are sometimes referred to as service animals, assistive animals, support animals, or therapy animals. To avoid confusion between the Fair Housing Act and the ADA, The US Department of Housing and Urban Development (HUD) mainly uses the term assistance animal to ensure that housing providers have a clear understanding of their obligations. Assistance animals are unique from pets since they help with performing many disability-related functions. These tasks may include, but are not limited to, guiding individuals, alerting people to sound, providing protection or rescue assistance, pulling wheelchairs, fetching items, alerting of impending seizures, or providing emotional support. Assistance animals are different from pets because they serve a purpose and they provide a benefit to a person with disabilities. When a person thinks of an assistance animal, most think of a dog, mainly because they are among the most popular and versatile of assistance animals, and can be trained to perform a variety of tasks. Dogs are also an eligible assistance animal because they simultaneously meet Fair Housing Act and ADA requirements. The ADA has recently added provisions to include miniature horses as assistance animals, and people have miniature horses as service animals if they are house broken, under control, and if the facility can accommodate the type, size, and By Sarah Medina weight of the animal without compromising safety. While the ADA has limited the definition of service animal to dogs and miniature horses, the Fair Housing Act has provided a more general definition that includes other species. Similar to the ADA, the Fair Housing Act defines assistance animals as an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability. However, the Fair Housing Act expands the definition by adding that the assistance animal provides emotional support and alleviates one or more identified symptoms or effect of a person s disability. This definition makes it possible for other species to be used as assistance animals. Parrots are often used for treating psychiatric disorders because many species have the ability to talk to their owners and relax them in stressful situations. These parrots are trained to speak to their owners and use the calming phrases like, everything is ok or I am here. For example, a man named Jim from St. Louis relies on his service parrot, Sadie. The parrot has been trained to repeat the phrase, It is OK, Jim. Calm down, Jim. You are all right, Jim. I am here, Jim to calm Jim down whenever she senses he is about to have a violent episode. Another kind of assistance animal is the Capuchin monkey. These 5- to 8-pound primates are bred and trained by families in socialization homes, where they learn to interact in a home environment. These monkeys are trained to perform manual tasks which make them great companions for people with paralysis and fine motor disabilities. While assistance animals may come in a variety of species and serve many purposes, tenants have the right to request an accommodation for an assistance animal. For more information regarding assistance animals, reasonable accommodations, and fair housing, please contact IFHMB s Fair Housing Department at Ext

7 Reasonable Accommodations for Medical Marijuana By Michael Flannery In 1996, with the passage of Proposition 215, which later became the California Compassionate Use Act, SB 420, California became the first state in the nation to decriminalize the use of marijuana for medicinal purposes. Under SB 420, patients diagnosed with any debilitating illness where the medical use of marijuana has been deemed appropriate and recommended by a physician have been afforded legal protection, as have their primary caregivers. However, rather than legalizing medical marijuana use, SB 420 removes state-level criminal penalties for the use, possession, and cultivation of marijuana up to state-approved levels (although those statutory limits have been called into question by the courts) when the patient has received a written or oral recommendation from a physician indicating that the patient would benefit from medical marijuana. What this means is that medical marijuana users may still be arrested for using marijuana, but having received the doctor s recommendation for medical marijuana use, the criminally-charged patient would have a defense to state and local criminal sanctions. However, this is not true of federal sanctions for marijuana use, sale, or cultivation. Although the Justice Department has stated that prosecution of patients using medical marijuana in accordance with state laws remains a low priority, marijuana remains an illegal drug under the Controlled Substances Act, and anyone who uses, sells, or grows it remains subject to criminal prosecution. This can cause confusion for landlords and tenants about what rights tenants who have a legal right to use medical marijuana under SB 420 have in regards to their housing under state and federal housing and disability laws. California law allows a landlord to prohibit smoking by a tenant, both in the common areas of the apartment complex or building, and also within their units, so long as the appropriate notice is contained in the lease or appropriate change in the terms of tenancy notice is given. This law specifically mentions cigarettes and does not mention marijuana. However, since marijuana is still considered an illegal drug under the Controlled Substances Act, the landlord would still be able to prohibit its use and cultivation under nuisance provisions, in addition to arguing that a prohibition on tobacco smoking ought to extend to marijuana smoking as well. 7 Since medical marijuana is used to combat symptoms of debilitating illnesses which, in themselves, would likely qualify as a disability under the Americans with Disabilities Act (ADA), and similar federal legislation, many patients have sought to use the reasonable accommodations provisions of the ADA to require an unwilling landlord to permit medical marijuana use and cultivation. However, the courts and other agencies have held that the ADA does not apply to medical marijuana use. Courts have found that medical marijuana use does not qualify as a reasonable accommodation under the ADA. The Ninth Circuit United States Court of Appeals, in the case of James v City of Costa Mesa, pointed out that the term individual with a disability, as used in the ADA, does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use (quoting 42 USC 12210(a)). The court went on to interpret this language to specifically say that since marijuana use, regardless of the purpose for which it is used, remains illegal under the Controlled Substances Act, an individual who uses medical marijuana is currently engaging in the illegal use of drugs and that when a landlord refuses to allow medical marijuana use, they are act[ing] on the basis of such [illegal drug] use. As a result, the patient using medical marijuana does not fall into the definition of an individual with a disability, and therefore is not entitled to a reasonable accommodation. Additionally, reasonable accommodations are only required for a person with a disability so long as such reasonable accommodations would not constitute an undue hardship. Requiring property owners to sanction violations of federal criminal law would seem to constitute an undue hardship. While there has been no direct decision by the California Supreme Court regarding the state Fair Employment and Housing Act (FEHA) in the housing context, the court has ruled on the intersection between the FEHA and SB 420 in the employment context. In that case, (Ross v RagingWire), the patient argued that the FEHA, read in light of SB 420, required employers to make a reasonable accommodation to their drug testing policy regarding employees for whom a physician has made a recommendation of medical marijuana use. In denying the patient s claims, the Court pointed out that SB 420 does

8 Reasonable Accommodations for Medical Marijuana Continued from Page 7 not grant medical marijuana the same legal protections as other prescription drugs; the law merely removes the criminal penalties associated with marijuana use, sale and cultivation. Since SB 420 was limited in its scope, the court was not going to extend it into areas where the legislature did not intend for it to go. Accordingly, the court would not interpret the FEHA to require an employer to make a reasonable accommodation for medical marijuana use in the employment context. The same logic could easily be extended to cover the housing context, as well. While the status of reasonable accommodation requests under state law in the housing context may be open to further argument, there is no such ambiguity in the federal public and assisted housing realm. The U.S. Department of Housing and Urban Development (HUD) has issued a number of opinions regarding medical marijuana in Section 8 housing. In these opinions, HUD makes clear that Public Housing Authorities (PHAs) and the owners of other federally assisted housing may not grant reasonable accommodations to residents for the use of medical marijuana. As one of the opinions stated: PHAs and owners may not grant reasonable accommodations that would allow tenants to grow, use, otherwise possess, or distribute medical marijuana, even if in doing so such tenants are complying with state laws authorizing medical marijuana-related conduct. (Memorandum issued Jan. 20, 2011) Moreover, the law requires that PHAs and owners of other federally assisted housing must deny admission to the program to those applicant households 8 with individuals who are, at the time of consideration for admission, using medical marijuana. These two rules are predicated upon the fact that use of medical marijuana use is a violation of the Controlled Substances Act, making patients users of illegal drugs, which federal law prohibits from the program. The only area where the PHAs and other owners of other federally assisted housing have any discretion is when deciding whether to evict or refrain from evicting current residents who engage in medical marijuana use while already in the program. For the landlord who is faced with a reasonable accommodation request from a tenant seeking to smoke medical marijuana, there are other alternatives that may be available. For example, some landlords are willing, as an accommodation, to release the tenant from the lease and allow the tenant to move to other housing with a more permissive landlord. The landlord could also consider accommodating the request, with the installation, at the tenants expense, of ventilation, or allowing marijuana use in a different form besides smoking, such as edible forms of the drug. Because the laws regarding marijuana use and cultivation are ever changing, as is the interplay between state and federal law, landlords and tenants should consider seeking legal advice when confronted with a situation where a reasonable accommodation request is contemplated or made. Financial Empowerment Workshops Are you tired of the debt roller coaster, living pay check to pay check and unable to save for the future? Do you feel like your finances control your life rather than you controlling them? Attend our Financial Empowerment workshop to gain the skills to move your goals forward. Financial Empowerment workshops are designed to empower you with tools, knowledge, and support. Make smart, money-saving decisions. Each workshop is free to the public. These workshops focus on the following themes: Develop SMART Financial Goals How to Budget Strategies on How To Pay Down Debt How To Use and Understand Credit Registration is required, please visit eventbrite.com to RSVP, or call ext.118 Dates January 19, PM to 8PM January 21, AM to 12PM January 26, PM to 8PM January 28, AM to 12PM Location 1500 S. Haven Ave., Suite 100 Ontario, California 91761

9 The First Time Homebuyer workshops educate potential borrowers on the complete process of purchasing a home. The class will cover areas such as how to buy a home, budgeting, credit, mortgage loans, and how to keep your home. All participants who complete the eight-hour course will receive a certificate of completion from the agency. Seminars are free to attend from January 1, March 31, For further information or to register for a class, please contact us at ext118. Registration To register for our Homebuyer Education Seminars, Please call, or visit our website. Call ext. 118 Visit Location 1500 S. Haven Ave., Ste. #100 Ontario, CA January Friday,1/13/2017, 8a-5p February Friday, 2/10/2017, 8a-5p March Friday, 3/10/2017, 8a-5p EQUAL HOUSING Inland Fair Housing and Mediation Board 1500 S. Haven Avenue, Suite #100 Ontario, CA I