MEMORANDUM FOR: All Fair Housing Enforcement Center Directors
All Program Operations and Compliance Center
Directors (Large and Small)
FROM: Sara Pratt, Director, Office of Investigations SUBJECT: Standing in Accessibilty Cases in Light of Ricks v. Beta Development Co., 1996 U.S. App. LEXIS 19743 (9th Cir. Aug. 1, 1996)
This memorandum discusses standing under paragraphs 804 (f) (1) and (2) of the Fair Housing Act ("Act"). It advises that, under paragraph 804 (f) (1), complaints against respondents who allegedly failed to design and construct accessible housing should be dismissed where the complainant did not have the interest in living in and/or the financial means to live at the housing. Such complaints should be investigated as possible violations of paragraph 804 (f) (2).
The United States Court of Appeals for the Ninth Circuit recently addressed the issue of standing under paragraph 804 (f) (1) of the Act in the above-referenced case. 1 (Copy attached.) That provision makes it unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any "buyer or renter" because of the handicap of, among other persons, that buyer or renter or a person intending to reside in the dwelling after it is sold or rented. 42 U.S.C. § 3604 (f) (1). Discrimination includes failing to design and construct covered multifamily dwellings so as to meet the Act's accessibility requirements. 42 U.S.C. § 3604 (f) (3) (C). The Ricks decision makes clear the importance of showing a causal relationship between the alleged discriminatory action and the asserted injury under paragraph 804 (f) (1).
Plaintiff Jeff Ricks, a disabled person, had alleged that the developer and designer of The Fountains at Makiki failed to design and construct the complex in accordance with the Act's accessibility requirements. The court of appeals upheld the district court's dismissal of the complaint, because Mr. Ricks had failed to allege any intent to purchase a condominium, i.e., "either that he was a prospective buyer or that but for the architectural barriers in the condominium, he would purchase a unit." The court noted further that Mr. Ricks had failed to allege even that he could afford to purchase a condominium at The Fountains.
Accordingly, investigations of complaints based on paragraph 804 (f) (1) should take care to develop evidence of "a particularized injury." The complainant should be asked to provide evidence showing that he/she actually was interested in purchasing a unit and could afford to do so. In addition, the complainant should provide evidence of how he/she was harmed by the respondent's failure to make the housing accessible, e.g., had to live at another less convenient or more costly location, was unable to obtain accessible housing.
A complainant who is not actually interested in purchasing, or able to purchase, a unit still may be able to file a complaint against a respondent for the latter's failure to design and construct housing so as to be accessible, as defined by the Act. If the complainant is a tester, his/her complaint may allege that paragraph 804 (f) (2) was violated, even though he/she was not a "buyer or renter" as described in 804 (f) (1). Paragraph 804 (f) (2) makes it unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with a dwelling, because of that person's handicap and/or others' handicaps. 42 U.S.C. § 3604 (f) (2). As with paragraph 804 (f) (1), discrimination includes the failure to design and construct covered multifamily dwellings so as to meet the Act's accessibility requirements. 42 U.S.C. § 3604 (f) (3) (C). However, unlike paragraph 804 (f) (1), paragraph 804 (f) (2)'s protections are not limited to buyers and renters, but rather extend to all persons. 2
In sum, complaints against respondents who allegedly failed to design and construct housing so as to meet the Act's accessibility requirements need not be dismissed entirely because the complainant had neither the interest in living nor the financial means actually to live at the housing. Rather, such complaints may be investigated under paragraph 804 (f) (2).
2. Courts specifically have held that testers have standing under subsection 804 (b), the language of which parallels that of paragraph 804 (f) (2). See United States v. Balistrieri, 981 F.2d 916, 929 (7th Cir. 1992) (finding that logic of Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), that testers have standing under subsection 804 (d), extends to subsection 804 (b), as each prohibits discrimination against "any person," not just bona fide offerers); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1527 (7th Cir. 1990) (holding that Havens logic "embraces discrimination in the provision of services, forbidden explicitly by section 3604 (b)"); Wheatley Heights Neighborhood Coalition v. Jenna Resales, 429 F.Supp. 486, 488 (E.D.N.Y. 1977) ("Even if testers cannot properly claim a violation of § 3604 (a) because they are not actually seeking to purchase a home, it is clear they can claim that racial steering ... violates the broader language of § 3604 (b)"). Since testers may have standing under paragraph 804 (b), it follows that they may have standing under paragraph 804 (f) (2). Back to text