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James W. Martin has written legal forms, books & articles for West, ALI-ABA & the Fla. Bar Journal and is rated AV by Martindale-Hubbell. James W. Martin consults from his St. Petersburg, Tampa Bay, Florida, law office on contract, business, corporate, probate, wills, trusts, real estate and lawsuit matters.

Fair Housing: What Lawyers Need to Know

Copyright 2008 by Erica K. Smith, Esq.

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In January 2008, Lynn Hanshaw and Kristen Mory shared their knowledge about fair housing issues with members of the St. Petersburg Bar Association Real Property Section. Ms. Hanshaw is a partner with the firm of Matusek, McKnight & Hanshaw, P.A. and litigated the first federal fair housing jury trial ever heard in the Middle District of Florida. Ms. Mory is a mediation and compliance specialist for the City of St. Petersburg Community Affairs Department. She mediates and investigates charges of discrimination based on housing, employment and public accommodations.  Here are some of the key points of their informative presentation:

Fair Housing Act

• Housing discrimination is prohibited by The Fair Housing Act of 1968 (FHA), The Florida Civil Rights Act of 1992 and The Florida Fair Housing Act, The Fair Housing Provisions of the Pinellas County Human Relations Code, and the City Code of St. Petersburg.
• The FHA prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status (including a pregnant woman or a person fostering or adopting a child), and disability. Within the city limits of St. Petersburg, discrimination is also prohibited on the basis of ancestry, sexual orientation, marital status, and children aged 16 to 18 years old. 
• The FHA covers most housing. The FHA generally exempts any single-family housing sold or rented by its owner, provided the owner owns fewer than four units; religious organizations and other associations that provide housing to their members; and properly run senior housing facilities and communities.
• The FHA prohibits the intimidation or coercion (by the housing provider or by other residents) of an individual asserting his or her rights under the Act.
• A housing provider does not have to provide housing for an individual who poses a direct threat to the health or safety of others or who currently uses illegal drugs.

Individuals with Disabilities and the FHA

• In 1988, a disabilities component was added to the FHA. The Americans with Disabilities Act (ADA) also covers public accommodations within housing facilities, such as leasing offices.
• Buildings with four or more units that have an elevator and were first occupied after March 13, 1991, must have the following design and construction components: an accessible building entrance on an accessible route; accessible public and common areas; doors and hallways wide enough for wheelchairs; an accessible route into and through each individual unit; accessible light switches, electrical outlets, thermostats, and environmental controls in each unit; reinforced bathroom walls that allow for the installation of grab bars; and accessible kitchens and bathrooms. If a building without an elevator was first occupied after March 13, 1991, and has four or more units, these design requirements apply only to units on the ground floor.    
• Reasonable accommodations must be made for individuals with disabilities. A “reasonable accommodation” is a change or adjustment to a service, policy or rule that allows an individual with a disability to have an equal opportunity to use and enjoy a dwelling, including public areas. Examples of reasonable accommodations are installing ramps, marking or reserving special parking spaces, or allowing the use of a service or support animal. A housing provider may deny a request for a reasonable accommodation for the following reasons: (1) the request was not made by an individual with a disability or on behalf of an individual with a disability; (2) there is no disability-related need for the accommodation (no sufficient nexus between the accommodation and the person’s disability); or (3) the accommodation is not reasonable (the accommodation would impose an undue financial and administrative burden or fundamentally alter the nature of the services provided). These determinations are generally made on a case-by-case basis.  
• A landlord should provide timely permission to allow an individual with a disability to make reasonable modifications to the individual’s dwelling unit or common areas. Unlike reasonable accommodations (which are at the landlord’s expense), reasonable modifications are at the individual’s expense. A landlord may charge a reasonable deposit, require the use of a licensed contractor, and, where reasonable, permit the changes only if the individual agrees to return the property to its original condition before moving.

Service and Support Animals

• Service animals must have been individually trained to provide assistance to a person with a disability. However, service animals do not have to be certified or have any type of special identification.
• A support animal is not necessarily individually trained to provide assistance. However, the animal must provide a service that is necessary to ease the symptoms of an individual with a disability.
• A service/support animal is not a pet. This means that a landlord or a public accommodation can not charge a pet deposit or an additional fee for a service/support animal.
• Not all service/support animals are dogs. For example, a bird or a fish may qualify as a support animal when the creature provides necessary emotional support to an individual with a disability. If there is a reasonable question as to whether an animal qualifies as a service/support animal, a landlord may request confirmation from the individual’s doctor that the animal provides necessary service or support to the person.
• An individual who uses a service animal can take the animal into any area where the public would normally be permitted to enter. State and local health codes may not be used to prohibit service animals from entering public areas.
• The only reason that a service animal can be excluded from public areas, housing or employment is if the animal poses a direct threat to the health and safety of others. Allergies and fear of animals do not qualify as such direct threats.

For more information on prohibited forms of discrimination, please consult fairhousingfirst.org, hud.gov, or ada.gov. If you would like a copy of Summary of Legal Bases, Coverage and HUD Enforcement of Fair Housing and Equal Opportunity Requirements, please contact Kristen Mory at 727-892-5507 or Kristen.Mory@stpete.org.

If you have any questions or comments about the Real Property Section, please contact Jim Martin, 2007-2008 Chair, at 727-821-0904 or jim@jamesmartinpa.com.

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Erica K. Smith is a graduate of The College of William and Mary and Stetson University College of Law. She is an associate with James W. Martin, P.A. and has more information on the Web site, www.jamesmartinpa.com.

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