IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

BLANCHE W BELL,

Plaintiff

v.

THE EPISCOPAL CHURCH HOME, INC.,

D/B/A/ BISHOP GADSDEN RETIREMENT

COMMUNITY,

Defendant.

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CA No. 2:05-1953-DCN-RSC

COMPLAINT

I. PRELIMINARY STATEMENT

1.	Plaintiff brings this action pursuant to the Fair Housing Act of 1968, as amended by the Fair

Housing Amendments Act of 1988, 42 U.S.C. §§3601 et seq., and the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq., to challenge the policies, procedures, and practices of defendant as violating federal and state protections against discrimination based on disability or handicap. Inter alia, plaintiff seeks protection from unlawful inquiries into the nature and severity of her disabilities, requirements that she prove her ability to move about or perform other tasks independently in order to obtain or enjoy residence and other benefits and programs provided by defendant, and involuntary transfer to a more restrictive living situation (including nursing home level of care) based on disability. She also challenges defendant's failure to reasonably accommodate her disabilities by being allowed to use personal care attendants as necessary to maintain or enhance independence and quality of life in her chosen living arrangements. Plaintiff seeks declaratory and permanent injunctive relief requiring defendant to end its discriminatory practices and to reform its contracts, policies, and procedures to conform to legal mandates and abolish discriminatory treatment in the conditions of its residency, as well as monetary damages (actual and punitive), costs and reasonable attorneys' fees and expenses. In addition, Mrs Bell seeks temporary and preliminary relief allowing her to remain in her home without discriminatory treatment and with appropriate accommodation while this litigation is pending.

II. Jurisdiction

2.	Jurisdiction is conferred on this court pursuant to 42 U.S.C. §§ 3613, 12188(a) and 28

U.S.C. §§ 1331, 1343 in that the claims alleged herein arise under the laws of the United States. The court has pendent jurisdiction over state law claims that arise from the same facts.

3.	The Court has jurisdiction over plaintiff's action for declaratory relief pursuant to 28

U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2203 and Rule 65 of the Federal Rules of Civil Procedure.

4.	Venue is proper in the District for South Carolina pursuant to 28 U.S.C. § 1391(b)(2) in

that the unlawful conduct that gives rise to these claims occurred within the District of South Carolina.

III. Parties

5.	Plaintiff Blanche W. Bell resides in the City and County of Charleston, state of South

Carolina.

6.	Upon information and belief, Defendant The Episcopal Church Home, Inc., d/b/a/ Bishop

Gadsden Retirement Community [hereinafter "Bishop Gadsden" or "BG"] is a non-profit corporation organized and existing under the laws of South Carolina and licensed by the South Carolina Department of Consumer Affairs as a continuing care retirement facility.

V. FACTS

7.	Plaintiff Blanche W. Bell is an 80 year old resident of Bishop Gadsden (BG), a

continuing care retirement facility in Charleston, SC.

8.	Ms. Bell moved into BG in 2000, at the age of 75, when she was able to take care of all of

her personal needs without assistance but wanted the ease and convenience of congregate dining and other amenities. In addition, Ms. Bell sought the peace of mind that additional services would be available to her when and if she needed them.

9.	In order to be accepted into BG, Ms. Bell was required to and did meet various

requirements and pay an entry fee in the amount of $161,100, which became non-refundable after

50 months. To stay in BG, she was required to pay an additional monthly charge, initially set at $2,050.

10.	Ms. Bell has met and continues to meet all non-medical and non-disability related

conditions and requirements for residency at BG.

11.	In its standard rental agreement, BG restricts entry to people who are medically certified

as in good health, ambulatory or able to move about independently, and able to take care of themselves in normal living activities.

12.	When she entered into the agreement, Ms Bell met the above medical certification

requirements.

13.	Ms. Bell lives in an apartment designated by defendant as an "independent living" unit. It

has two bedrooms, a living room, dining room, office, kitchen, laundry room, and bath. The apartment is filled with her furniture and possessions and is decorated to her taste. She has the key to the door and comes and goes and receives visitors as she pleases. She can and does host visitors for meals and overnight. Routinely, she takes breakfast in the café and dinner in the Winningham dining hall, both facilities offered by BG for residents of "independent living" units. She enjoys an active social life and has formed many valued friendships and other relationships since moving to BG.

14.	After moving into BG, Ms Bell developed progressive muscle weakness that has come to

substantially limit her ability to walk, stand, and perform various self-care tasks. She must use a power wheelchair for mobility and her current apartment has been modified to accommodate her disabilities. To get in and out of her chair and safely perform self-care tasks, she requires assistance from others.

15.	Ms. Bell is person with a "handicap" within the meaning of the Fair Housing Act, 42

U.S.C. § 3601(h), and has a "disability" under the Americans with Disabilities Act, 42 U.S.C. § 12102(2) in that she has a physical impairment that substantially limits major life activities.

16.	Solely because of Ms Bell's disability or handicap, BG has determined that Ms Bell may

not remain in her apartment. BG has advised her that she must either transfer to BG's nursing home unit or vacate BG all together, and that if she fails to transfer by July 12, a nursing home bed may not be available and she will be considered in breach of contract and subject to ejectment.

17.	Under BG's policies, residents of its nursing home are subject to supervision and control,

are not allowed to dine in the café or Winningham dining hall, and have very limited private space.

18.	Ms Bell does not agree to transfer or to leave BG and surrender her home and access to

other benefits offered by BG, for which she has made a substantial investment. She has obtained personal assistance as needed and wishes to continue this arrangement.

19.	BG's policies purport to limit the nature, amount, and duration of services employed by

residents, even if those services are needed due to a disability and paid for and arranged by the resident, and BG refuses to make any exception as an accommodation to disability.

20.	BG has denied Ms. Bell permission to continue to employ personal attendants to

accommodate her disability and enable her to maintain her current residence and enjoy opportunities and choices available to residents without disabilities.

21.	BG's policies purport to classify, segregate, limit, and restrict residents based on the

nature and severity of their disabilities in a variety of ways, including requirements that diners in the café and Winningham hall not sit at the table with ambulatory aids or use personal assistance with their food and restrictions of certain field trips to ambulatory residents. These policies have denied Ms. Bell and other residents with disabilities opportunities and choices available to people without such disabilities and discourage other people with disabilities from seeking residency at BG.

22.	Bishop Gadsden rents dwellings within the meaning of the Fair Housing Act, 42 U.S.C. §

3601 (b) and the South Carolina Fair Housing Act, S.C. Code Ann. § 31-21-30 (5).

23.	Bishop Gadsden is a "public accommodation" within the meaning of the Americans with

Disabilities Act, 42 U.S.C. § 12181(7) in that it is a private entity that operates a place of lodging, establishments serving food and drink, places of public gathering, retail and service establishments, a social service establishment, and places of exercise and recreation, and the said operations affect "commerce" as defined at 42 U.S.C. § 12181(1)(A).

24.	Defendant's conduct was wilful, intentional and taken in reckless disregard of the rights

of others.

25.	Ms. Bell has suffered, and is continuing to suffer, damage as the result of defendant's

actions as defendant has intruded into her private affairs, has abrogated her right as a competent adult to make decisions as to the most basic aspects of life, and has stigmatized her as unfit for BG's community, and asserts its continued right to do so and threatens her continued enjoyment of her home and treasured personal relationships.

26.	Unless enjoined, defendant will continue to engage in the unlawful acts and the pattern

or practice of discrimination alleged in this complaint and will commit additional unlawful acts. Plaintiff has no adequate remedy at law. Plaintiff is now suffering and will continue to suffer irreparable injury from defendant's acts and its pattern or practice of discrimination on the basis of disability unless relief is provided by this Court. Accordingly, plaintiff is entitled to injunctive relief.

FIRST CAUSE OF ACTION - FEDERAL FAIR HOUSING ACT

27.	Plaintiff realleges and incorporates by reference paragraphs 1- 26.

28.	Defendant is violating Plaintiff's rights under the Fair Housing Act, 42 U.S.C. § 3601 et

seq., and its implementing regulations by:

a.	Making statements with respect to sale or rental of a dwelling that indicates a
preference, limitation or discrimination on the basis of disability in violation of 42 U.S.C. § 3604(c);

b.	Discriminating or otherwise making unavailable a dwelling because of disability,
in violation of 42 U.S.C. § 3604(f)(1), in the following respects, among others:

i.	Imposing as a term or condition of residency that applicants and residents must be in good health, ambulatory or able to move about independently, and able to take care of themselves in normal living activities, independently of long-term attendant services that are necessary because of the applicant or tenant's disability, including services that are arranged and paid for by such an applicant;

ii.	Limiting the nature, extent, and duration of services that residents with disabilities may receive attendant services that are necessary because of their disability, including services arranged and paid for by such residents;

iii.	Limiting the ability of residents with disabilities to live with people not otherwise eligible for residency in BG but whose presence is necessary on account of their disabilities, including personal assistance and safety needs;

iv.	Making inquiries into the nature and severity of a resident's disability in the absence of a resident's request for a special accommodation or for disability-related or medical services to be provided by BG where such services are appropriately limited to those who have a demonstrable need;

v.	Discouraging persons with a disability from residing in BG units;

vi.	Steering persons with disabilities from the independent living cottage or apartment units to assisted living units or to its nursing home.

c.	Discriminating in the terms, conditions or privileges of the sale or rental of a
dwelling because of disability, in violation of 42 U.S.C. § 3604(f)(2);

d.	Refusing to make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford people with disabilities equal opportunity to use and enjoy a dwelling, in violation of 42 U.S.C § 3604(f)(3).

29.	As a result of defendant's actions, plaintiff has suffered and continues to suffer damages

and is entitled to equitable relief as alleged herein.

SECOND CAUSE OF ACTION- AMERICANS WITH DISABILITIES ACT

30.	Plaintiff realleges and incorporates by reference paragraphs 1 through 29.

31.	By its conduct as set forth above, defendant is violating plaintiff's rights under the

Americans with Disabilities Act, 42 U.S.C §§ 12101 et seq., especially 12182, and its implementing regulations in the following respects:

a.	In denying plaintiff opportunities to participate in or benefit from certain of its
goods, services, facilities, privileges, advantages, and accommodations, based on disability.

b.	In providing plaintiff with benefits from its goods, services, facilities, privileges,
advantages, and accommodations that are not equal to those provided to others.

c.	In providing plaintiff goods, services, facilities, privileges, advantages, and
accommodations that are separate and different from those provided to others.

d.	In refusing to serve and accommodate plaintiff in the most integrated setting
appropriate to her needs.

e.	In imposing application and eligibility criteria that screen out or tend to screen out	individuals with disabilities, particularly those who need or are likely to need long-term personal attendant services in activities of daily living.

f.	In failing to make reasonable modifications to its policies, practices, and procedures, particularly as to residents' employing assistants in their homes and affecting live-in assistance, when such modifications are necessary to afford plaintiff its goods, services, privileges, advantages, and accommodations.

g.	In failing to take steps necessary to ensure that plaintiff is not excluded, denied
services, segregated, or otherwise treated differently from others because of the absence of auxiliary aids and services, including reforming policies, practices, and procedures that prevent people with disabilities from using auxiliary aids and services such as attendant services not arranged by BG.

32.	As a result of defendant's actions and to prevent further violations, plaintiff is entitled to

equitable relief as aforesaid.

THIRD CAUSE OF ACTION - SOUTH CAROLINA FAIR HOUSING ACT

33.	Plaintiff realleges and incorporates by reference paragraphs 1 through 32.

34.	By its conduct as set forth above, defendant is violating plaintiff's rights under the South

Carolina Fair Housing Act, S.C. Code Ann. §§ 31-21-10 et seq., including, inter alia, §§ 31-21-
40(3), (6) and (7); 31-21-70(G)(2).

35.	As a result of defendant's actions and to prevent further violations, plaintiff is entitled to

equitable relief and to actual and punitive damages as provided in the statute.

FOURTH CAUSE OF ACTION - SOUTH CAROLINA HUMAN AFFAIRS LAW

36.	Plaintiff realleges and incorporates by reference paragraphs 1 through 35.

37.	By its conduct as set forth above, defendant is violating plaintiff's rights under the South

Carolina Human Affairs Law, S.C. Code Ann. § 43-33-10 et seq., including, inter alia, §§ 43-
33-20(b), 43-33-70, 43-33-530, and 43-33-540.

38.	As a result of defendant's actions and to prevent further violations, plaintiff is entitled to

equitable relief as aforesaid and to damages as provided in the South Carolina statute.

WHEREFORE, Plaintiff respectfully requests that this court enter an order:

1.	Declaring that defendant's discriminatory practices violate the Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., the South Carolina Fair Housing Act, and the South Carolina Human Affairs Law;

2.	Entering a permanent injunction directing the defendant and its officers, directors, agents,

employees and successors, and all other persons in active concert or participation with

them, to take all affirmative steps necessary to remedy the effects of the illegal, discriminatory conduct alleged herein and to prevent similar occurrences in the future;

3.	Awarding monetary damages to plaintiff in an amount to be determined by the jury that

would fully compensate plaintiff for her injuries sustained by defendant's discriminatory housing practices pursuant to 42 U.S.C. §3613(c)(1) and pursuant to state law;

4.	Awarding punitive damages to plaintiff in an amount to be determined by the jury

pursuant to 42 U.S.C. § 3613(c)(1) and state law;

5.	Awarding reasonable costs and attorneys fees pursuant to 42 U.S.C. §3613(c)(2) and

12205 and state law;

6.	Awarding any further relief the court may deem just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P 38(b), the plaintiff demands a trial by jury of all issues so triable as of right.

Respectfully Submitted,

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HARRIET McBRYDE JOHNSON, Esq

Federal ID No 2192

171 Church Street, Suite 160

Charleston SC 29401

(843) 722-0178

_______________________________

JOHN R POLITO, Esq

Federal ID No 3081

1325 Pherigo St

Mt Pleasant SC 29464

(843) 849-9721

________________________________

Susan Ann Silverstein, Esq

Pending admission pro hac vice

AARP FOUNDATION LITIGATION

601 E. Street, NW, Rm A4-140

Washington DC 20049

(202) 434-2159

ATTORNEYS FOR THE PLAINTIFF

Date: July 8, 2005