National groups sue Florida city over 'independent living' requirement

By Tracey McCartney
National Fair Housing Advocate Online

(SANIBEL, Fla., August 7, 2003) -- Two national advocacy groups have sued a Florida city, its low-income housing program and the program's director for evicting an elderly man the director believed was unable to care for himself.

Attorneys for the American Association of Retired Persons (AARP) and the Bazelon Center for Mental Health Law in Washington, D.C., filed the suit in federal court in Florida on Thursday on behalf of Howard Symons, an 82-year-old tenant of the city's "Below Market Rate Housing" program.

In their suit, they allege that the housing program, which is operated by the city, sought to evict Mr. Symons because staff of the program, based on illegal questions about his health, believe he is no longer to live indepently.

The housing program required that tenants be able to live independently, and the suit alleges that the requirement and the program staff's inquiries into tenants' capabilities and health status violate the Fair Housing Act, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

"I don't need any help to manage, and I gave them plenty of letters from doctors saying so," Mr. Symons said. "Even if I did need help from my daughter or a service provider, I don't see where it is CHR's business as long as I pay the rent and keep my apartment up."

Partly at issue are the program requirements that provided:

The BMRH senior citizen location is an independent living project, and as such, applicants for this housing location must be fully capable of independent living. Independent Living means capable of performing ACTIVITIES of Daily Living without direct physical assistance or supervision....
In those instances where a tenant is considered to no longer be able to live independently, CHR maintains the right at its discretion to review the situation, and discontinue a tenant’s lease should the situation warrant such action.  As part of this review, CHR may require that the tenant undergo an assessment by an agency or doctor of CHR’s choice who deals with the issue of independent living on a regular basis, and is knowledgeable in the parameters involved with such a determination.  The need for such action will be determined on a case-by-case basis....

Frank Aloia, an attorney representing the housing program and the city, said Thursday that "the policy that was in effect in the past is no longer policy," Mr. Aloia said.

Mr. Symons has been a tenant of the housing program since 1991.  The suit alleges that Ms. Hyatt or her staff members made inquiries throughout Mr. Symons' tenancy about his physical and mental condition, and that Mr. Symons, unaware that such inquiries are illegal, either answered the questions or gave his doctors permission to provide health information.  The information was collected in a file, which Mr. Symons was not able to review, the lawsuit alleges.

According to the complaint, based on the medical information Ms. Hyatt gathered, a screening committee decided in September 2002 not to renew Mr. Symons' lease.  The housing program staff gave him until Dec. 21 of that year to move.  After he failed to move, and even after he filed a discrimination complaint with the U.S. Department of Housing and Urban Development, the housing program filed for eviction in a county court, according to the suit.

Mr. Aloia says the program’s decision not to renew Mr. Symons’ lease was based on a determination that Mr. Symons posed a health and safety risk to other tenants.

However, according to an excerpt of a letter the housing program sent to Mr. Symons’ grown daughter, the decision was based at least partly on the “his physical deterioration over the past several months, his inability to keep proper care of the unit, and the independent living criteria of the City’s Below Market Rate Housing program.”

At least three federal trial-level courts have held that "independent living" requirements violate the Fair Housing Act.

The suit also alleges that the housing program staff made Mr. Symons' medical information public by including it in the eviction filings and by giving it to a television reporter who visited Mr. Symons for a story on housing discrimination.  The television news report showed Mr. Symons tap-dancing to demonstrate his good health.

The suit alleges that Mr. Symons, an "active, independent" World War II veteran, will not be able to afford most rental housing in the area if he is evicted.  Rather, he will likely be forced into "congregate or institutional housing, or face homelessness," according to the suit.

Though Mr. Symons is able to live independently, the law protects him because he is "regarded as" having a disability, said Michael Allen, an attorney for the Bazelon Center.

However, even if he were disabled, the law would not allow the housing program to evict him because of it, Mr. Allen said.

"The Fair Housing Act and the ADA protect the rights of people with disabilities and seniors to live in the housing of their choice, to 'age in place' and to have as much or as little support from family and service providers as they need," Mr. Allen said.  "Instead of embracing these values, the City and CHR have taken the outrageous position that Mr. Symons and other older people should be moved to assisted living facilities. That is wrong as a matter of law, and it is lousy social policy."

Mr. Allen said this program's policies probably are not unusual.

"It's probably the tip of the iceberg in terms of similar programs housing older people," he said. "We believe that this criteria of independent living is something that housing providers use to avoid housing people who may later develop physical and mental disabilities."