Recent Fair Housing Disability Cases: A quick and dirty summary of Court of Appeals Decisions 2008-2009 (with great thanks to Westlaw)

1. Loeffler v. Staten IslandUniversity Hosp.
582 F.3d 268, C.A.2 (N.Y.),2009.

Deaf patient's children, who provided sign language interpreter services for patient after hospital failed to provide such an interpreter, were “persons aggrieved” with standing under the RA to bring associational discrimination claim against hospital; children were compelled to provide sign language interpretation for the hospital and were consequently taken out of school and exposed to their father's suffering, which were injuries independent of their parents' injuries that were causally related to the hospital's failure to provide sign language interpretation. To gain entry to the courts, non-disabled parties bringing associational discrimination claims under the RA need only prove an independent injury causally related to the denial of federally required services to the disabled persons with whom the non-disabled plaintiffs are associated. (Per concurring opinion of Wesley, Circuit Judge, in which Sand, District Judge, joined.) Rehabilitation Act of 1973.Triable issues of material fact as to whether there was deliberate indifference and thus entitlement to monetary damages.

2. Hawn v. ShorelineTowers Phase 1 Condominium Association, Inc.
Slip Copy, 2009 WL 3004036C.A.11 (Fla.),2009.

Unreported case where plaintiff lost RA request for companion dog. Fact that cost case: pre RA request to keep puppy adopted on vacation referred to pet puppy and pet policy and made no mention of disability or RA. Later RA request did not seem to make a serious attempt to address that this was now a different tack and to explain change, court discounted it as post hac justification and seemed to hold medical provider to higher standard as a result (doc had merely checked off a box on a form). Plaintiff’s claim that “no animals” sign was discriminatory also failed.

3. Schwarz v. City of Treasure Island,
544 F.3d 1201, 37 NDLR P 253, 21 Fla. L. Weekly Fed. C 1154, C.A.11 (Fla.), October 08, 2008 (NO. 07-14761)

Central issue raised in this appeal: whether the City of Treasure Island violated the FairHousingAct by enforcing its occupancy-turnover rule against the halfway houses. Halfway houses were found to be dwellings. Plaintiffs lost on disparate treatment and effect, and won some lost some RA claims.

4. Garcia v. Brockway,526 F.3d 456, 08 Cal. Daily Op. Serv. 5698, 2008 Daily Journal D.A.R. 6883, C.A.9 (Idaho), May 13, 2008

Holdings: On rehearing en banc, the Court of Appeals, Kozinski, Chief Judge, adopted panel opinion and held that:

(1) FHA's two-year limitations period governing private civil actions ran from conclusion of design-and-construction phase;

(2) commencement of limitations period was not extended under continuing violation doctrine;

(3) commencement of limitations period was not extended until point when plaintiffs “encountered” FHA violations; and

(4) commencement of limitations period was not extended until discovery of FHA violations.

(Contrast Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc., 210 Fed.Appx. 469, 480 (6th Cir.2006)

5. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC521 F.3d 1157C.A.9 (Cal.),2008.April 03, 2008

Communications Decency Act (CDA) immunity did not apply to roommate-matching Internet website that was designed to force subscribers to divulge protected characteristics and discriminatory preferences and to match those who had rooms with those who were looking for rooms based on criteria that appeared to be prohibited by FairHousingAct (FHA).

6. Budnick v. Town of Carefree
518 F.3d 1109C.A.9 (Ariz.),2008.

Even if developer's unsuccessful application for special use permit (SUP) to build a multi-level continuing-care retirement community was itself sufficient to request a reasonable accommodation from town under Fair Housing Amendments Act (FHAA), developer could not establish prima facie claim of disability discrimination on a theory of failure to reasonably accommodate since developer did not set forth sufficient evidence to establish that its planned facility's amenities were necessary to house disabled seniors.

7. Assenberg v. Anacortes Housing Authority268 Fed.Appx. 643C.A.9 (Wash.),2008.

Housing authority did not have duty to reasonably accommodate tenant's medical marijuana use under FairHousingAct (FHA), Americans with Disabilities Act (ADA) or Rehabilitation Act, and thus tenant evicted for drug use was not entitled to assert medical necessity defense in action alleging failure to accommodate against housing authority.