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

MEMORANDUM IN SUPPORT

OF PLAINTIFF'S MOTION

FOR A PRELIMINARY

INJUNCTION

I. INTRODUCTION AND STATEMENT OF FACTS

Plaintiff Blanche W Bell, an 80 year old widow (Bell Aff. ¶1) recently diagnosed with ALS, Lou Gehrig's disease (id. ¶12), is being told she must give up the spacious private apartment that is now her home. Bell Aff. ¶¶ 1, 10, 12. Defendant housing provider states overtly that the reason is disability. Bell Aff. Exhibits C, D, F, G, I, K, M.. But for the fact that Ms Bell needs help with activities like transferring from her wheelchair to her bed, shower, and toilet, defendant would have no problem with her staying where she is. Because she needs such help, however, defendant is demanding that she give up her apartment. It does not matter to defendant that she is not asking it to provide any special assistance; she is willing and has proven herself able to take care of her own needs by arranging the necessary staff at her own expense. (Bell Aff. ¶ 17) All she needs is for the defendant to stop enforcing its discriminatory policies that get in the way of her living as she sees fit.

It is perhaps ironic that the defendant is a provider of specialized housing for people 65 years old and older. Licensed under state law as a continuing care retirement facility, Bishop Gdsden affirmatively undertakes to cater to the varied and changing needs that typically come with age.1 However, its Residence and Services Agreement and various policies purport to restrict entry to people who are able to take care of their personal needs and move about "independently," i.e., without assistance from others. Bell Aff., Exhibit.A, residency agreement; Exhibit C, BG Letter with attached Resident Transfer Policies. Through the agreement and its policies, defendant invests in itself the unilateral authority to determine when residents should be transferred from its "independent living" apartments to settings where it provides more services and exercises more supervision and control. Its written policies that operationalize this authority expressly provide that residents are to be "placed" based solely on their limitations, i.e., disabilities. By substituting its judgment for its residents' judgments about what is best for them, defendant's policies are antithetical to the federal statutory rights of people with disabilities to enjoy the same opportunities other people enjoy and to have the reasonable accommodations they need to make these rights real. It operates in a manner that keeps the visibly disabled out of sight and isolated from its larger community of "fit and active seniors."

Before filing this action, Ms Bell attempted to satisfy defendant's concerns and work out a resolution. She has stated clearly that she does not want or need nursing home confinement and has provided medical documentation supporting her current living arrangements. (Bell Aff. Exhibit H, Johnson letter to Tipton, 3/17/05 and Exhibits N-P.) However, instead of accommodating Ms Bell's disability-related needs, the defendant took a "my way or the highway" approach. Because Ms Bell has certain physical disabilities, it claims an absolute and unilateral right to decide where and how she will live and to override decisions she has made as a competent adult. It has told Ms Bell that she must vacate by July 12, 2005, or be removed from the community all together (Bell Aff. Exhibit M).

By this motion, Ms Bell seeks to preserve the status quo while this litigation is pending. In deciding this motion, this court must consider --

(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest. See Federal Leasing, Inc. v. Underwriters at Lloyd's, 650 F.2d 495, 499 (4 Cir. 1981). As Blackwelder set forth, the two most important factors are the likelihood of irreparable harm to the plaintiff if interim relief is not granted and the likelihood of irreparable harm to the defendant if interim relief is granted. The two factors should be weighed against one another, and if the balance is in favor of the plaintiff, it is proper to grant interim injunctive relief if grave or serious questions are presented for ultimate decision. Blackwelder, 550 F.2d at 196. See also Jones v. Bd. of Governors of Univ. of North Carolina, 704 F.2d 713, 715 (4 Cir. 1983); Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119, 1124-25 (4 Cir. 1977).

L.J. v. Massinga, 838 F.2d 118, 120 (4th Cir., 1988), citing Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4 Cir. 1977). This memorandum will focus on Ms Bell's claim that defendant's policy of excluding people who need assistance with activities of daily living from its "independent living" units and of prohibiting long-term use of personal care attendants violates the Fair Housing Act. Essentially the same analysis applies under the Americans with Disabilities Act.

II. ARGUMENT.

A.	THE FAIR HOUSING ACT IS A REMEDIAL ACT, TO BE CONSTRUED BROADLY IN THE INTEREST OF BOTH INDIVIDUALS AND THE PUBLIC; THE REQUESTED RELIEF FURTHERS THE PUBLIC INTEREST.

In enacting the Fair Housing Act, Congress's explicit intent was "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. § 3601 (2004). In ruling on the constitutionality of the Fair Housing Act, a unanimous Supreme Court enunciated the fundamental principle that guides all Fair Housing Act decisions: the Act as a whole is "broad and inclusive," implements a "policy that Congress considered to be of the highest priority," and such policy can be given effect "only by a generous construction" of the statute. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 211-12 (1972).

Until 1988, there was no general federal protection against disability discrimination in housing. That year, Congress passed and President Reagan signed the Fair Housing Amendments Act, Pub. L. No. 100-430, 102 Stat. 1619 (1988) (codified at 42 U.S.C. §§ 3601-
3619) (FHAA), making it illegal to discriminate in housing on the basis of mental or physical disability. Congress recognized that, because of "stereotypes and ignorance," people with disabilities were often cut out of the rental market and forced to live in institutions, such as nursing homes. H. R. Rep. No. 100-711, reprinted in 1988 U.S.C.C.A.N. 2173, 2179 (hereafter "House Report"). The FHAA was enacted as a "pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream." Two years after the FHAA, the same policy concerns were reflected in the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (2004).

Like other disability civil rights laws, the FHAA recognizes that it is not enough simply to prohibit intentional discrimination against handicapped persons by housing providers. Rather, Congress required that, when asked to do so, housing providers were generally required to provide "reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B).

The Fair Housing Act in general, and the present case in particular, implicate issues of increasing public concern. There are more than 35 million people in the United States who are over sixty-five years of age and that number is projected to rise to 45 million by the year 2020.2 The likelihood of disability increases with age. Of those fifty and over, 13% have a limitation in their ability to care for themselves or in their mobility; for persons sixty-five and over, the incidence of a disability that interferes with one or more activities of daily living is estimated to be as high as 68%.3 Mobility impairments are the most common source of disability among the elderly.4 The vast majority of people over the age of fifty, whether they have a disability or not, express a preference for remaining in their homes and receiving any necessary services there or in the community.5 Overwhelmingly, people strongly prefer independent living in their own homes to other alternatives.6 Not only is aging in one's home the vast preference of older people,7 it is also more cost effective.8 Forcing seniors with disabilities into expensive, restrictive institutional settings, even if ostensibly "for their own good," runs counter to cherished principles of individual freedom and autonomy and also increases the social cost of dependency.

B.	PLAINTIFF HAS A SUBSTANTIAL LIKELIHOOD OF PREVAILING.

1.	Plaintiff is likely to prevail under the Fair Housing Act.

Defendant cannot reasonably dispute that plaintiff has a "handicap"9 within the meaning of Fair Housing, given its formal determination that she needs to be in a nursing home. She clearly is substantially limited in mobility and self-care. She is thus within the law's protected class. 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201. Defendant is covered as a renter of "dwellings." Under the Fair Housing Act, a "dwelling" is defined as:

any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.

42 U.S.C. § 3602(b)(2004). None of the Act's exemptions, at 42 U.S.C. §3603(b) and 3607, apply; they are so narrow and specific as to reinforce the Act's general applicability. Many non-
traditional dwellings have been held to be covered by the Act. See, e.g., Hack v. President of Yale Coll., 237 F.3d 81, 87 (2d. Cir. 2000) (college dormitories); Louisiana Acorn Fair Hous. v. Quarter House, Inc., 952 F. Supp. 352, 358-60 (E.D. La. 1997) (recreational time property); United States v. Columbus Country Club, 915 F.2d 877, 881 (3d. Cir. 1990), cert. denied, 501 U.S. 1205 (1991) (summer cottages without heat or running water, occupied seasonally; covered because not within any exception). In addition, facilities that provide treatment, such as homeless shelters, child welfare facilities, and nursing homes, have all been held to be covered by the Act. E.g., Project Life, Inc.,v. Glendening, 139 F. Supp. 2d 703, 711 (W.D. Md. 2001), aff'd on other grounds, 46 Fed. Appx. 147 (4th Cir. 2002) (decommissioned Navy ship used for residential education program for women recovering from substance abuse); United States v. Hughes Memorial Home, 396 F. Supp. 544, 549 (W.D. Va. 1975) (testator attempts to restrict private orphanage to "white children"; home covered because more than a place of temporary sojourn, where the children lived for the time that they were in residence); Hovsons, Inc. v. Township of Brick, New Jersey, 89 F.3d 1096, 1101-02 (3d. Cir. 1996) (nursing home); United States v. Lorantffy Care Ctr., 999 F. Supp. 1037, 1044 (N.D. Ohio 1998) (assisted living center). Ms Bell not only took up residence in defendant's complex, but expressly contemplated remaining there the rest of her life. Bell Aff, ¶ 2 and ¶ 4.

Given that the law applies, the next question is whether there is a violation. The complaint alleges numerous violations; two are specifically germane to this motion.

First, defendant's residency agreement expressly requires that residents be capable of self care. Bell Aff. Exhibit A. It and associated policies allow defendant to transfer residents out of apartments and cottages, into more restrictive settings, against their will, or to terminate residency, if they can no longer meet the self-care requirement. Bell Aff. Exhibit C, inter alia. It is well established that requiring a resident to be capable of independent living as a condition of residency constitutes illegal discrimination on the basis of disability, in violation of the Fair Housing Act. Cason v. Rochester Housing Authority,748 F. Supp. 1002 (W.D. NY 1990); Jainniney v. Maximum Independent Living, No. 00-CV-0879 (N.D. Ohio Feb. 9, 2001); Niederhauser v. Independence Square Hous., FH-FL Rptr. & 16,305, No. C 96-20504 (N.D. Cal. Aug. 27, 1998); see also Samuelson v. Mid-Atlantic Realty Co., 947 F. Supp. 756, 761 (D. Del. 1996) (the manner in which a rental agreement is terminated constitutes a term, condition or privilege under 42 U.S.C. §3604(f)(2)). By imposing a condition of residency that is placed on people with disabilities but not on people without disabilities, the BG Residence and Services Agreement (Bell Aff., Exhibit A) violates the Fair Housing Act's prohibition on discrimination in the terms or conditions in connection with the provision of a dwelling. 42 U.S. C. § 3604(f)(2); 24 C.F.R. § 100.202(b).10 By requiring that residents certify their ability to self-care (Id, at page 8, paragraph F), it violates the Fair Housing Act's prohibition on inquiries into the nature and severity of a person's disability. 24 C.F.R. § 100.202(c); Cason at 1008; Neiderhauser at &16,305.7. Third, by including the discriminatory self-care requirement in the Residence and Services Agreement, defendant violates 42 U.S.C. § 3604(c) which prohibits the publication of statements that, inter alia, indicate a limitation based on handicap. Neiderhauser at &16,305.5-.6 (The inclusion of an independent living requirement in the landlord's written rules and policies violated §3604(c) "regardless of a landlord's actual policies or practices"). Housing providers may consider whether residents can meet the obligations of residency, such as keeping the apartment up, not whether the resident needs help dressing, eating, etc. The resident is free to meet these obligations with or without assistance, such as from a personal assistant or cleaning service. See, H.R. Rep. No. 100-711, at 30 (1988) reprinted in 1988 U.S.C.C.A.N. 1762, 2191 (also cited in Neiderhauser at & 16,305.51). To the extent that the BG Residence and Services Agreement purports to waive federally protected rights, it is unenforceable.11

Second, to the extent that there might be some conceivable legitimate nondiscriminatory basis for a policy limiting personal assistance for nondisabled members of a retirement community, defendant has violated the Act in refusing to modify the policy as a reasonable accommodation to Ms Bell's disability. Congress sought to move people with disabilities "into the American mainstream," but understood that the mainstream rental market may pose obstacles for people with disabilities.12 Recognizing the variability of most disabilities, Congress imposed the mandate on housing providers as an "an affirmative duty" to reasonably accommodate residents' disabilities. United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994) (42 U.S.C. § 3604(f)(3)(B) imposes an "affirmative duty"). See also Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 948 (9th Cir. 1996) (same); U.S. v. City of Taylor, 872 F. Supp. 423, 436 (E.D. Mich.1995) (same). A reasonable accommodation is a change, exception, or adjustment to a rule, policy or practice.13 The limits on this duty are quite simple:

A housing provider can deny a request for a reasonable accommodation if the request was not made by or on behalf of a person with a disability or if there is no disability-related need for the accommodation. In addition, a request for reasonable accommodation may be denied if providing the accommodation is not reasonable—i.e., if it would impose an undue financial and administrative burden on the housing provider or it would fundamentally alter the nature of the provider's operations.

Joint Statement, supra note 13 (Question 7). Here, the request has clearly been made and denied. The defendant cannot claim Ms Bell does not need personal assistance – it has demanded she be placed in its nursing home. It cannot claim any financial burden, as Ms Bell asks only to be left alone and will bear the entire cost of the assistance she needs. Its administrative burden would be reduced since it would no longer interfere with Ms Bell's day-to-day management of her personal life or monitor her medical condition.14 Its operations would be altered, but only to the extent that they have been based on disability discrimination – defendant would not be required to change the services it offers or even where they are offered. Ms Bell would in fact live independently in an "independent living" apartment, with the assistance of her power wheelchair and personal care attendants

2.	Plaintiff is also likely to prevail under the Americans with Disabilities Act.

Essentially the same principles and facts as are recited above establish Ms Bell's entitlement to relief under Title III of the Americans with Disabilities Act. The definition of the protected class parallels the FHAA. The definition of "public accommodation" is even broader than "dwelling," including not only places of lodging, but medical and service organizations, places of public gathering, restaurants, and the like. While entities covered by FHAA are exempt from the definition of "commercial facilities" in Title III, that definition applies only to requirements for new construction, not at issue in this case.15 This narrow exemption makes clear that the categories may otherwise overlap. Substantively, the ADA sets forth specific duties of nondiscrimination that parallel the FHAA and other disability rights laws in prohibiting discriminatory selection and eligibility criteria, restrictive environments, segregation, and denial of reasonable accommodation.

The Supreme Court has noted that in passing the ADA Congress recognized that "unjustified institutional isolation of persons with disabilities is a form of discrimination." Olmstead v. L.C., 527 U.S. 581, 600 (1999). That recognition rested on two underlying judgments:

First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. . . . Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.

Id. at 600-01 (citations omitted). What is true in the macrocosm of society is equally true in the microcosm of this small retirement community. Ms Bell is clearly able to "handle" and "benefit from" her current "setting" in this community. Defendant is acting on an unwarranted assumption that she is incapable, unworthy, or both. Her isolation or exclusion would perpetuate those assumptions, to the detriment of both herself and the community in which she wants to remain.

C.	GRANTING RELIEF WILL NOT CAUSE SUBSTANTIAL HARM TO DEFENDANT.

As has been noted, plaintiff is not asking defendant to incur any expense or otherwise act to its detriment. Defendant's policies affirmatively provide that residents may use personal assistance on a temporary basis, indicating that such arrangements do not unduly interfere with its operations. The only difference is that instead of waiting for a medical determination, plaintiff is asking for protection pending a legal determination.

D.	PRELIMINARY RELIEF IS NEEDED TO PREVENT IRREPARABLE HARM AND PRESERVE THE STATUS QUO.

Courts have long recognized that the violation of one's fair housing rights results in per se irreparable injury. See Gresham v. Windrush Partners, Ltd., 730 F. 2d 1417, 1423 (11th Cir. 1984) ("...irreparable injury may be presumed from the fact of discrimination and violations of fair housing statutes"). Ms. Bell is harmed every single day by the defendant's insistence that she is not entitled to live where and how she now lives solely because of her disability. This harm cannot be undone. Allowing defendant to carry out its threats to "eject" her from her home would make the situation incalculably worse. Bell Aff, ¶14-16. She would experience a major disruption of life at a time when disruptions of any kind are difficult. At age 80, recently diagnosed with a progressive neuromuscular disease, undergoing dramatic physical changes, she draws strength from the support of close friends in the community. Bell Aff, ¶ 5 and 12. She can offer pleasant accommodations when out-of-state family members come to visit. But for defendant's discriminatory practices, she would face the future with comfort, security and dignity. Instead, she faces the real possibility of being cast off, perhaps serving as an object lesson to her friends about the futility of objecting to defendant's placement decisions. More tangibly, she would lose the lifetime care benefits that she does not want or need now, but may want and need in the future, as her condition progresses. Bell Aff. ¶ 2, 3, 16. While she may hope, through the use of personal assistance, to minimize her time in nursing care, she needs to know that if and when she does need it, it will be available at a place close enough for her friends to visit, as she has visited those who went before her.

For several months, defendant has forborne from enforcing its discriminatory policies against Ms Bell, based on policies that arbitrarily apply only to people whose disabilities might be temporary in nature. It has not had any hardship or burden as a result. Ms Bell asks that the status quo be maintained while defendant is given an opportunity to try to defend its right to disturb it.

Respectfully submitted,

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