GAO looking into accessibility controversy

Jan. 5, 2000
by Tracey McCartney
National Fair Housing Advocate Online

Three U.S. Senators have asked the General Accounting Office to find out how the U.S. Department of Housing and Urban Development chooses what agencies will receive money to investigate whether builders have violated a federal law regarding access for people with disabilities.

The request is the result of complaints from architects and builders who have been sued by fair housing advocates over their failure to comply with that law.

The letter from Sens. Larry Craig, R-Idaho; Mike Crapo, R-Idaho; and Ted Stevens, R-Alaska, to GAO director David Walker outlined complaints they had received from "builders, contractors, realtors and others in several states saying that, as the result of monitoring and enforcement efforts, they are being required to take actions that are inconsistent across states and that, in some cases, amount to harassment and are not geared toward fixing the identified problems."

The senators also asked the GAO, which is Congress' investigative arm, to look into complaints from builders that the 1988 Fair Housing Amendments Act is unclear and is being enforced unfairly. The 1988 act required builders and architects of certain multi-family housing, such as apartment and condominium complexes, to design and build it to be accessible to people with disabilities.

"We're trying to find out enough information to determine whether or not those complaints are real," said Nancy Simmons, Assistant Director for Community Development Issues at GAO. The GAO's probe is just starting and will involve private fair housing organizations, local and state civil rights agencies and field offices of the U.S. Department of Housing and Urban Development. GAO also will consult HUD headquarters, the Department of Justice and the U.S. Department of Health and Human Services, she said.

The 1988 act expanded on the original Fair Housing Act, which was passed in 1968. The act now prohibits discrimination in housing and housing-related transactions based on race, color, national origin, disability, religion, familial status (the presence or expected presence of children under 18 in a household) and disability.

The GAO probe will not focus on the degree to which builders and architects have violated the 1988 amendment to the law, Ms. Simmons said. Rather, GAO will seek to determine what enforcement activities are taking place, including "who is doing the enforcement and whether anything is being done proactively." Ms. Simmons confirmed that the GAO is aware of at least one builder's complaint that HUD had placed "bounties" on builders that violated the law by encouraging private organizations receiving HUD money to focus some of their resources and attention on the accessibility issue.

The GAO will probably not issue a report before late summer, Ms. Simmons said. When it does, the GAO will be only the latest body to weigh in on the controversy over the accessibility law. Each side in the conflict blames the other for the law's failure to create more accessible housing.

The accessibility law took effect in 1991, but it has been widely violated by builders and architects. According to testimony before a House subcommittee in October, an investigation in the Chicago area found that only one of 49 multifamily developments complied with the law.

While advocates and HUD argue that builders had more than two years to get acquainted with the law once it passed, the building industry says that requirements have never been clear and that enforcement of the law is too aggressive. And the building industry is calling on friends in Congress to help them make that argument.

For example, Craig, who is leading the charge for the GAO probe, has received more than $62,000 in campaign contributions since 1989 from some of the real estate and building interests complaining about the accessibility law.

Two of the largest contributors are the political action committees associated with the National Association of Home Builders and the National Association of Realtors. They are among the richest and most generous PACs in the country, according to Federal Election Commission data.

Ken Burgess, Craig's Boise regional director, said Craig and the other signers of the GAO letter became aware of the issue when builders complained about the enforcement work done by the Intermountain Fair Housing Council, a private organization in Boise that had brought several complaints of violations of the law by designers and builders. The Idaho organization had operated under grants from HUD to carry out enforcement throughout the state.

The group filed 80 complaints of design and construction violations in 1998 and 1999, leading some of those defendants and industry groups to complain to Crapo and Craig, Burgess said. (See related story, "Agency director: we lost funds for doing our job.")

The industry blames Congress and HUD for builders' widespread ignorance and violations of the law. First, they say, Congress should have forced local governments to incorporate the federal accessibility requirements into local building codes so that builders would not have to consult more than one regulatory standard in order to comply with the law.

The law encourages, but does not require, local governments to incorporate the standards and to review building plans to determine whether they conform to the federal requirements.

Burgess said that building codes are "in one file cabinet that builders consult, and then you have this sliver of a building code in a civil rights law over in this other file cabinet.

"Essentially, building code enforcement offices within local jurisdictions don't have the responsibility of telling builders whether their designs are in compliance, and we think this is a problem," Burgess said.

However, he conceded that any effort in 1988 to force a federal building code on local governments likely would have been doomed to failure because of Congressional concerns about state and local autonomy. "I don't disagree that forcing local governments to adopt building codes would have been problematic," Burgess said.

HUD also failed to train industry groups before the law took effect, Burgess said. "In Idaho, for example, we have asked our regional HUD office to provide us with (a list of) all education efforts since 1988," he said. "We found that HUD provided us a woefully short list of educational seminars in our region. That includes Seattle and Spokane."

Further, he said, most of the seminars did not focus solely on the design and construction requirements, and most of them were geared to fair housing advocates instead of builders and architects.

Industry groups have also complained that "guidelines" HUD issued in order to aid builders in complying with the law were not made "official" until 1998 and that before then, they had to guess what the standards are, Burgess said. No two officials at HUD ever agreed on the exact standards either, he said.

However, even before HUD issued guidelines, the 1988 law provided that builders who followed standards issued by the American National Standards Institute could rest assured they were in compliance with the law. The ANSI standards are available to any builder or architect willing to purchase them.

And Intermountain Fair Housing Council director Richard Mabbutt, whose enforcement work in Idaho prompted Craig to push for the GAO probe, said the violations his organization found in their investigations were not a matter of an inch here or an inche there, as would be the case if there were simple confusion over the standards.

"We saw ground-floor units that were accessible only be stairs. Four-inch thresholds were common," making it impossible for a wheelchair user to enter, Mabbutt said. "Round doorknobs were universal."

Most of the units had light switches, mailboxes and dumpsters that a wheelchair user could not reach, and many were so clearly inaccessible even from the parking lot that an apartment seeker using a wheelchair would not have even bothered to try to enter the rental office, Mabbutt said.

Still, complaints from builders led to the introduction last year of the "Justice in Fair Housing Enforcement Act," sponsored by Rep. Walter Jones, R-North Carolina. The bill would exempt from civil liability any builder or architect who complied with a local building code but failed to follow the federal law between 1991 and 1999.

Burgess said that building interests had approached Craig to introduce such a bill in the Senate, but Craig declined to do so because he felt such a measure, while reasonable, would have little chance of passing. "We didn't think it had a chance in hell of making it through Congress," Burgess said. "The problem you have there is that then you're messing with a civil rights law."

In an Oct. 28, 1999, hearing on the House bill before the Constitution Subcommittee of the House Judiciary Committee, Mark Ellis Tipton, a representative of the National Association of Home Builders, told the committee members that too much money is directed to enforcement instead of to education. And even though the Builders association received a HUD grant to inform its members about the requirements of the Act, "those efforts reach only a limited segment of the industry. Not all builders are members of NAHB, and not all association members are able to leave their business for industry seminars," Tipton said. "In short, NAHB's reach is limited."

However, Bill Lann Lee, Acting Assistant Attorney General for the Civil Rights Division of the Department of Justice, told the committee that NAHB and other industry groups not only had plenty of time to become aware of the new law, they helped draft it. Further, he said, while builders and architects complain that their local building codes don't give them proper notice of the federal accessibility requirements, most builders and designers sued under the law went out of their way to violate it.

"Indeed, while we have seen buildings where both design and construction were noncompliant, we have also seen situations where a builder simply ignored the accessible features of an architect's design plan and, conversely, where an architect failed to follow an owner's explicit instructions to provide a design that met the Fair Housing Amendments Act's accessibility requirements," Lee said. "Providing accessible multifamily housing has simply not been enough of a priority for the home building industry."

Shanna Smith, executive director of the Washington-based National Fair Housing Alliance, spoke with members of the GAO's staff and was satisfied that the GAO would pursue the issue fairly. "The GAO staffers seemed to clearly understand the rights and responsibilities of private fair housing organizations to initiate investigations into new construction for design compliance," she said.

HUD, meanwhile, has been working to reconcile the various standards builders follow in an effort to clear up confusion. Since 1997, the agency has been working on a document that would detail the differences between four national model building codes and the federal accessibility requirements.

HUD has commissioned a private consultant to analyze the model codes and to make recommendations that the code-making organizations could use to make their codes conform to the federal requirements. The report will not create any new requirements; rather, it is an effort to provide the code-making bodies with technical assistance they had requested. Most state and local building codes are based on the model building codes developed by these national organizations.

Burgess said the best solution to the controversy would be for HUD to either develop a model building code that builders and architects could follow or to officially endorse one developed by one of the model code bodies. Then, local and state governments could incorporate those standards alongside the codes they have in place already, he said.

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