BALTIMORE NEIGHBORHOODS,
INC., et al.,
Plaintiffs,
v.
T.R. SEVEN OAKS L.L.C.,
et al.,
Defendants.
------------------------------
Plaintiffs, Baltimore Neighborhoods, Inc. ("BNI") and J. Patrick McCurdy ("McCurdy"), initially filed this suit against Defendant T.R. Seven Oaks L.L.C. ("Seven Oaks"), the general contractor of the Saybrooke at Seven Oaks Condominiums ("Saybrooke"). Plaintiffs alleged that the dwelling units at Saybrooke were not constructed in compliance with the Fair Housing Act, 42 U.S.C. § 3604(f). They later amended their complaint to add Design Collective, Inc., an architectural firm, alleging, inter alia, that Design Collective had "designed the Saybrooke condominiums" (Amended Compl., ¶8); that the defendants "ha[d] designed and constructed the Saybrooke Condominiums in violation of the Fair Housing Act's accessibility requirements and in such a way as to make living there difficult or impossible for those who use wheelchairs" (Amended Compl., ¶12); and that the defendants' "failure to design and construct Saybrooke in a manner accessible to Mr. McCurdy and other wheelchair users violates the Fair Housing Act, 42 U.S.C. [§] 3604(f)." (Amended Compl., ¶17).
Currently pending before the Court is the motion to dismiss filed by defendant Design Collective. In its motion, Design Collective argues, inter alia, that, as the mere designer of Saybrooke, it is not liable for the alleged failure of that complex to comply with the provisions of the Fair Housing Act requiring accessible design features for certain multifamily housing. See 42 U.S.C. § 3604(f)(3)(C).(1) As set forth below, the United States urges the Court to reject Design Collective's argument.
Congress passed the Fair Housing Act "to insure that people who have historically suffered from discrimination in the housing markets would have an equal opportunity to housing." People Helpers Foundation, Inc. v. City of Richmond, 789 F. Supp. 725, 731 (E.D. Va. 1992). The Act reflects the "overriding societal priority" of providing for fair housing throughout the country. Walker v. Crigler, 976 F.2d 900, 904 (4th Cir. 1992). Prior to 1988, the Act prohibited discrimination on the basis of race, color, religion, sex or national origin. See 42 U.S.C. §3604 (1974).
In 1988, Congress amended Section 804 of the Fair Housing Act to provide that
it shall be unlawful --
(f)(1) to discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of --(A) that buyer or renter, [or]
(B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or
(C) any person associated with that buyer or renter.
42 U.S.C. §§ 3604(f)(1)(A) and (B). Section 804(f)(2) of the amended Act also makes it unlawful "[t]o 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 such dwelling, because of a handicap * * *." 42 U.S.C. §3604(f)(2). As amended, the Act constitutes "a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals." Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). It represents a "clear pro-nouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream." H.R. Rep. No. 711, 100th Cong., 2d Sess. 25 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2186 ("H.R. Rep.").
The disability provisions of the amended Fair Housing Act "were intended to reach a wide array of discriminatory housing practices * * *." Potomac Group Homes Corp. v Montgomery County, Maryland, 823 F. Supp. 1285, 1294 (D. Md. 1993). Among the practices Congress intended to address through their enactment was the "consistent failure to design and build housing having accessible features." 134 Cong. Rec. S10544-02 (Aug. 2, 1988); 1988 WL 174369 at *31 (statement of Sen. Stafford). As noted in the House Report which accompanied the bill:
Because persons with mobility impairments need to be able to get into and around a dwelling unit (or else they are in effect excluded because of their handicap), the bill requires that in the future covered multifamily dwellings be accessible and adaptable. This means that the doors and hallways must be wide enough to accommodate wheelchairs, switches and other controls must be in convenient locations, most rooms and spaces must be on an accessible route, and disabled persons should be able to easily make additional accommodations if needed, such as installing grab bars in the bathroom, without major renovation or structural change.These modest requirements will be incorporated into the design of new buildings, resulting in features which do not look unusual and will not add significant additional costs.
H.R. Rep. No. 711 at 18, reprinted in 1988 U.S.C.C.A.N. at 2179 (emphasis supplied).
Accordingly, Congress defined "discrimination" for purposes of Section 804(f) to include:
(3)(C) in connection with the design and construction of covered multifamily dwellings * * * a failure to design and construct those dwellings in such a manner that --(i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
(ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) all premises within such dwellings contain [certain specified] features of adaptive design[.]
42 U.S.C. §3604(f)(3)(C)(i)-(iii).
In ruling on a motion to dismiss, courts must accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109 (1979); Conley v. Gibson, 355 U.S. 41, 48 (1957); Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1993). The allegations of the complaint should be construed broadly and liberally. Wright & Miller, Federal Practice & Procedure § 1350, p. 551; see also Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). It is well-established that a complaint should not be dismissed for failure to state a claim unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," especially when ruling on a motion to dismiss a civil rights action under Rule 12(b)(6). Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Conley, 355 U.S. at 46. As the Court stated in United States v. Parma, P.H.E.O.H. Rptr. para. 13,616 (N.D. Ohio 1973):
It is especially in civil rights disputes that we ought to be wary of disposing of the case on pre-trial motions and courts do in fact have a predilection for allowing civil rights cases to proceed until a comprehensive record is available to either support or negate the facts alleged.
Accordingly, dismissal should be granted "'only in the unusual case'" in which the allegations in the complaint itself demonstrate on their face "'some insuperable bar to relief.'" FTC v. Freeman Hospital and Tri-State Osteopathic Hospital Ass'n, 914 F. Supp. 331 332 (W.D. Mo. 1995), quoting Robinson v. MFA Mutual Ins. Co., 629 F.2d 497, 500 (8th Cir. 1980).
Here, plaintiffs' allegations pose no such bar. Their factual allegations, construed in the light most favorable to the plaintiffs, state a cause of action;(2) and defendant Design Collective has not shown that it is clearly entitled to judgment as a matter of law.
"Statutory interpretation always begins (and often ends) with the words of the statute itself." United States v. Southern Management Corp., 955 F.2d 914, 919 (4th Cir. 1993). In the case of the amended Fair Housing Act, that text is written in broad terms. As noted above, the Act states that "it shall be unlawful" to "discriminate" on the basis of disability by "fail[ing] to design and construct [certain multifamily] dwellings" such that they are accessible to and usable by persons with disabilities. 42 U.S.C. §§ 3604(f)(1)-(3). Nothing in that text provides a basis for concluding that Congress intended to exclude architects from its coverage.
Yet defendant Design Collective, whose discriminatory plans for Saybrooke at Seven Oaks allegedly resulted in the construction of an inaccessible dwelling, seeks to insulate itself from liability. It does so by arguing that the Act only "imposes liability upon those 'who design and construct' covered dwellings, not on those entities that perform one or the other of those functions, but not both." Def. Br., p. 2 (emphasis in original). Because Design Collective is only the designer, the argument goes, it cannot be held responsible for Fair Housing Act violations at the Saybrooke at Seven Oaks condominiums since it was, at least in its view,(3) not involved in the development's construction. See Def. Br., p. 2.
Defendant's argument is seriously flawed. Initially, Design Collective's argument fails factually. Plaintiffs have alleged that Design Collective was involved in the design and construction phases, and that allegation must be accepted as true for purposes of ruling on the present motion. See pp. 1,4-6, supra. In addition, its argument is without legal merit.
Nowhere does the Fair Housing Act specify or otherwise limit who may be liable for violating its mandate. The statute is written "in the passive voice -- banning an outcome while not saying who the actor is, or how such actors bring about the forbidden consequence * * *." See NAACP v. American Family Mutual Insurance Co., 978 F.2d 287, 298 (7th Cir. 1992), cert. denied, 113 S. Ct. 2335 (1993)(construing Section 804 to apply to property insurers). Here, the forbidden outcome is making housing "unavailable" by failing to design and construct dwellings which are inaccessible and unusable by persons with disabilities.
The language of Section 804(f)(3)(C), by defining the conduct that constitutes a violation of the Act -- the "failure to design and construct [covered mutifamily] dwellings" with accessible features, itself suggests that architects fall within the scope of its coverage. By including the term "design," Congress emphasized that those entities or persons who engage in such conduct -- architects, engineers, and other designers of all types -- have obligations under the Fair Housing Act. Congress could have written this paragraph without using the word "design," addressing itself only to the end result by making it illegal only to "construct" inaccessible dwellings. But, as noted earlier, Congress intended that the Act's "modest requirements" making covered multifamily dwellings "accessible and adaptable" to persons with mobility impairments "be incorporated into the design of new dwellings * * *." See supra, p. 3-4, quoting H.R. Rep. at 18 (emphasis supplied). By including the design function in the description of the prohibited conduct, however, Congress brought within the Act's coverage not just those parties who are ultimately responsible for the construction of a new, multifamily dwelling, but also those parties who play a role in the design of the building as constructed. Thus, Section 804(f)(3)(C) applies to the entire process of building covered multifamily dwellings -- their "design and construction," and requires all parties involved in that "design and construction" process to conform their involvement, whatever its scope, to the requirements of the Fair Housing Act.
Design Collective's parsing of the "design and construct" language of Section 804(f)(3)(C), under which only those parties who both "design and construct" dwellings can be held liable, is unreasonable and would vitiate the provision. Under its proposed reading, designers and builders could each escape liability for a resulting inaccessible dwelling by compartmentalizing their roles. As long as neither engages in both "design and construction," each could not be held responsible. Such a Catch-22 result would effectively nullify the coverage of the Act. Moreover, the use of the conjunction "and" in the statutory text represents a reasonable legislative choice.(4) Had Congress used the word "or," the Act would have made unlawful the mere "design" of an inaccessible dwelling, even where actual construction was never contemplated or achieved. Congress was concerned with a "failure to design and construct * * * [accessible] dwellings," 42 U.S.C. § 3604(f)(3)(C), not the mere drafting of blueprints for dwellings that never get built. The focus of the Act is on the failure to achieve the desired legislative goal, not on the identities of parties responsible for that failure.
Design Collective's reliance on the decision in Paralyzed Veterans of America v. Ellerbe Becket Architects & Engineers, P.C., 945 F. Supp. 1 (D.D.C. 1996), a case under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, is misplaced.(5) We believe that Paralyzed Veterans was incorrectly decided. For one thing, the Court's interpretation of the ADA, limiting Section 303 of the Act to the parties identified in Section 302(a) (see Paralyzed Veterans, 945 F. Supp. at 2), leaves out a whole category of facilities -- commercial facilities -- that Congress clearly intended to cover under the new construction requirements contained in Section 303 of the Act. Indeed, the Court in Johanson v. Huizenga Holdings, Inc., C.A. No. 96-7027-CIV-GONZALEZ, slip op. at pp. 6-8 (S.D. Fla. Jan. 27, 1997), refused to dismiss an ADA claim against an architect even though the defendant had argued that the Court "should follow the determination" of Paralyzed Veterans "that 'design and construction,' as used in § 303, must be read conjunctively, so that an entity is liable only if it both designed and constructed the building" and had also argued that "architects are not liable under the ADA unless, in addition to designing and/or constructing the building, they also own, lease, or operate it [as set forth in Section 302(a)]."(6) Moreover, unlike Section 302 of the ADA, which specifies (in its general mandate prohibiting discrimination against individuals with disabilities) the parties to whom its mandate applies -- "any person who owns, leases (or leases to) or operates a place of public accommodation," 42 U.S.C. § 12182(a), the Fair Housing Act, as we have already noted, nowhere delimits which actors may be held liable for engaging in unlawful conduct. Accordingly, because the decision in Paralyzed Veterans relies upon an incorporation of parties named in Section 302 of the ADA to conduct under Section 303, it is of little relevance to this case under the Fair Housing Act.
While the courts are split on the proper interpretation of the ADA, the only case under the Fair Housing Act to address the reach of its "failure to design and construct" language has held that it applies to architects. In Balachowski v. Boidy, C.A. No. 95 C 6340, bench op. pp. 3, 6 (N.D. Ill. Mar. 8, 1996)(Leinenweber, J.), the court concluded that "[t]he statute clearly targets the discriminatory 'design' of the building" and "determin[ed] that the architect of the building in which plaintiff lives is liable [under Section 804(f)(3)(C) of the Fair Housing Act] for housing discrimination stemming from the 'design' of the building.")(emphasis supplied).(7)
In so doing, the Boidy court rejected the argument that "only the owner/developer, and not the architect, is responsible for the 'design' of a building." Id., at p. 4. It further observed that the provisions of the Fair Housing Act pertaining to the design of new multifamily dwellings were not effective upon their enactment in 1988 but "provided advance notice to 'designers' by only imposing liability for violations relating to dwellings occupied for the first time in 1991." Id., at pp. 3-4. The purpose of this delay, as explained by one of the sponsor's of the legislation, was to "allow architects and builders adequate time to finish building projects already under way and make design modifications that will be adequate in the future." 134 Cong. Rec. S10544-02, 1988 WL 174369 at *15 (Aug. 2, 1988) (remarks of Sen. Hatch). By contrast, neither Design Collective nor the Paralyzed Veterans decision explains how the inclusion of the term "design" can be squared with their cramped reading of the statute. It is more faithful to the language of the statute, and better serves the purposes of the Act, to read the terms "design" and "construct" in Section 804(f)(3) as referring to two distinct components of a single process -- a process which results in the unavailability of dwellings to persons with disabilities.
Courts construing the Fair Housing Act have held that it employs a "'broad and inclusive' compass" and is entitled to a "'generous construction.'" City of Edmonds v. Oxford House, Inc., ___ U.S. ___, 115 S. Ct. 1776, 1780 (1995), citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 212 (1972); Hovson's, Inc. v. Township of Brick, 89 F.3d 1096, 1105 (3rd Cir. 1996); Potomac Group Home Corp., 823 F. Supp. at 1294. Holding architects responsible for designing dwellings that exclude individuals with disabilities is consistent with the compass provided by the Act. Architects play key roles in the design and construction of new dwellings, where an owner relies heavily on architects, engineers, contractors, and other building professionals with highly specialized expertise.(8) In such a case, an owner will in many instances simply be unable to judge whether the building professionals to whom he or she has entrusted the project are complying with the statute, particularly if the architect disregards the law or authoritative interpretations of it, or fails to inform his client of the applicable requirements or interpretations.(9) In most cases, owners will not realistically be in a position to identify and prevent Fair Housing Act violations during the design and construction of the facility, and errors will have to be addressed after construction is complete, when it may be considerably more difficult and expensive to remedy any such violations. As Senator Kennedy, one of the sponsors of the amended Act, cogently observed, "it is often far less expensive to provide for accessible and adaptable housing before the housing is built * * *." 134 Cong. Rec. S19711 (Aug. 1, 1988)(remarks of Sen. Kennedy).
Finally, Design Collective's argument that architects need not be held liable under the Fair Housing Act because such professionals may "still be liable to the developer under common law theories of negligence" (see Def. Br., p.9) rests on an implicit and unfounded assumption: that the Fair Housing Act does or should apply only to the smallest class of parties necessary to achieve its aims.(10) In enacting a civil rights statute, Congress is not required to confine liability only to the "upper-level" parties who have what Design Collective calls "ultimate responsibility." See Def. Br., p.10. Congress may choose to cast the net more broadly to improve the chances that its aims will be realized. Indeed, this is precisely what Congress has done. See Boidy, supra, bench op. at p. 4 (rejecting defendant's argument "that only the owner/developer, and not the architect, is responsible for the 'design' of a building.").
As noted earlier, the Fair Housing Act does not itself specify who is liable -- it specifies only a prohibited activity -- so that the question that arises is simply whether a particular person or entity has violated a duty imposed by the statute. An action based on the federal Fair Housing Act is essentially an action in tort; for "the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach." Curtis v. Loether, 415 U.S. 189, 195 (1974). Accordingly, courts have held that an agent who assists his principal in committing the "tort" -- in violating the duty not to discriminate in housing -- is "himself liable as a joint tortfeasor." Dillon v. AFBIC Development Corp., 597 F.2d 556, 562 (5th Cir. 1979).
There is no principled distinction between architects who design an inaccessible dwelling, which, if built, will be unavailable to a person with a mobility impairment, and a rental agent who affirmatively bars a person as a tenant on discriminatory grounds. As the House Report which accompanied the amended Fair Housing Act observed regarding the bill's provisions pertaining to accessible design and construction:
Acts that have the effect of causing discrimination can be just as devastating as intentional discrimination. A person using a wheelchair is just as effectively excluded from the opportunity to live in a particular dwelling by the lack of access into the unit and by too narrow doorways as by a posted sign saying "No Handicapped People Allowed." In Alexander v. Choate, [469 U.S. 287 (1985)], the Supreme Court observed that discrimination on the basis of handicap is "most often the product, not of invidious animus, but rather of thoughtlessness and indifference -- of benign neglect" and mentioned "architectural barriers" as one factor that can have a discriminatory effect.
H.R. Rep. No. 711 at 25, reprinted in 1988 U.S.C.A.N. at 2186. The designers of such "architectural barriers" are not above the law. Accordingly, Design Collective may be held responsible by virtue of its participation in the design and construction of the Saybrooke at Seven Oaks condominiums.
For these reasons, we request the Court reject defendant Design Collective's argument that the Fair Housing Act imposes liability under Section 804(f) only upon those entities which have both designed and constructed a dwelling and deny its motion to dismiss on that issue.
Respectfully submitted,
Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division
Paul F. Hancock
Chief, Housing and Civil Enforcement Section
Isabelle M. Thabault
Deputy Chief
Myron S. Lehtman
Attorney
Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
P.O. box 65998
Washington, D.C. 20035-5998
(202) 514-4738
Lynne A. Battaglia
United States Attorney
Kay Allison
Assistant United States Attorney
101 West Lombard
Baltimore, MD 21201
(410) 962-4822
Assistant United States Attorney
1 Defendant Design Collective has also moved to dismiss plaintiff McCurdy's claims on ripeness grounds. See Def. Br., pp. 7-8. We do not address those grounds in our brief.
2 Design Collective's motion must be decided against the factual background alleged in the plaintiffs' amended complaint. Accordingly, this Court should disregard Design Collective's averment (Def. Br., p.2, n.1) that "Design Collective did not observe the construction of the project, nor was construction observation included in its contract as a part of the scope of the work to be performed." As noted above, plaintiffs' amended complaint alleges that the defendants, including Design Collective, failed "to design and construct Saybrooke in a manner accessible to Mr. McCurdy and other wheelchair users * * *." (Amended Compl., ¶17.). As we demonstrate below, however, Design Collective may be held liable under the Fair Housing Act even if its involvement in the project were merely limited to designing the project in a discriminatory manner.
4 The use of the conjunction "and" in referring to two, distinct concepts does not necessarily require a finding that a defendant's actions have encompassed both to establish liability under federal law. For instance, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9607(a)(1), imposes liability upon the present "owner and operator" of a hazardous waste facility. (Emphasis supplied). Nevertheless, courts have held that "current ownership of a facility alone brings a party within the ambit" of the statute, notwithstanding the use of the conjunctive. United States v. Maryland Bank & Trust Co., 632 F. Supp. 573, 577 (D. Md. 1986). Accord Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1497 (11th Cir. 1996); United States v. Fleet Factors Corp., 901 F.2d 1550, 1554 n.3 (11th Cir. 1990), cert. denied, 498 U.S. 1046 (1991); Artesian Water Co. v Government of New Castle County, 659 F. Supp. 1269, 1280-81 (D. Del. 1987), aff'd, 851 F.2d 643 (3rd Cir. 1988); see also Long Beach Unified School District v. Dorothy B. Godwin California Living Trust, 32 F.3d 1364, 1367 (9th Cir. 1994)(noting "[o]bviously 'owner' and 'operator' are distinct concepts, else Congress wouldn't have used two words. Like other courts, we read these categories in the disjunctive."). As the Court in Maryland Bank & Trust Co., 632 F. Supp at 577, observed:
Proper usage dictates that the phrase "the owner and operator" include only those persons who are both owners and operators. But by no means does Congress always follow the rules of grammar when enacting the laws of this nation. In fact, to slavishly follow the laws of grammar while interpreting acts of Congress would violate sound canons of statutory interpretation.
Unlike CERCLA, however, the Fair Housing Act does not even specify who may be held liable.
5 In Paralyzed Veterans, plaintiffs filed suit under title III of the ADA, alleging, inter alia, that the defendant architects had failed to design an arena in compliance with the Act. Briefly, Section 303 of title III of the ADA requires new facilities to be designed and constructed to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. § 12183(a)(1). That section, which applies to "public accommodations" and "commercial facilities", states that:
discrimination for purposes of Section 302(a) includes * * * a failure to design and construct * * * facilities that are readily accessible to and usable by individuals with disabilities.
Id.
The ADA defines "commercial facilities" very broadly as all facilities intended for non-residential use whose operations affect commerce (with the exception of certain railroad facilities and equipment, and certain facilities covered by the Fair Housing Act). See 42 U.S.C. § 12181(2). The category of "public accommodations," while still large, is not as broadly inclusive as "commercial facilities." The statute defines "public accommodations" to be entities (1) whose operations affect commerce, and (2) that fall into one or more of twelve categories of public accommodations set out in the Act. See 42 U.S.C. § 12181(7).
Title III of the ADA, however, does not only set architectural requirements for the design and construction of new facilities. It also prohibits a variety of forms of discrimination in the day-to-day operation of certain businesses. That is, in addition to the requirements for new construction set out in Section 303, 42 U.S.C. § 12183(a), Section 302 of the Act imposes on public accommodations, but not on commercial facilities, various other non-discrimination obligations with respect to their day-to-day operations. See 42 U.S.C. § 12182(a) and (b). Title III's general mandate prohibiting discrimination against individuals with disabilities in public accommodations is set out in section 302(a) of the Act, which provides that
[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a).
6 A copy of the this decision is attached as Attachment A.
7. 7A copy of the transcript of the bench opinion in Boidy is attached as Attachment B.
8 Indeed, the demarcation between the "design" phases and "construction" phases may not be a bright line.
Of course, the owner remains liable under the Fair Housing Act, as the "duty of a property owner not to discriminate in the leasing or sale of [a] property is non-delegable." Walker v. Crigler, 976 F.2d at 904. As the Court of Appeals for this Circuit further noted in Walker, id., at n.9, "the owner will not be subject to liability for the full amount of all successful claims to the extent that contribution from other liable parties may offset some, or all, of the payment for which the owner is responsible."
10 Moreover, there may be very real limitations on the ability of a developer to bring an action against an architect or contractor after a building has been completed. A statute of repose, for instance, may have foreclosed any possibility of an action against the architect or contractor once the building has been completed.