More proof that HB-235 does not protect the homeless and victims of domestic violence

As we go into a new week, Equality Maryland continues to insist that HB-235 without a public accommodation provision will provide recourse for shelters.  In my previous blog on this issue, I have already gone into length about how the law sees the difference between a dwelling and an establishment for transient lodging.

To further solidify that an emergency homeless shelter is not a "dwelling" in the eyes of the federal Fair Housing Act, we can turn to Intermountain Fair Housing Council v. Boise Rescue Mission, Inc., 2010 U.S. Dist. LEXIS 48065 (D ID, May 12, 2010).  This is a 2010 case where a federal district court judge had determined that the faith-based shelter was not considered a "dwelling" and therefore the religious protections in the Fair Housing Act would not apply to the shelter aspect of their operation.  

The key decision was that the shelter is not considered a "dwelling".

In this ruling, "dwelling" is defined from the Fair Housing Act:

The FHA defines a "dwelling" 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, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof." 42 U.S.C. ? 3602(b); see 24 C.F.R. ? 100.20(b) (providing same definition of "dwelling").

Case law would clarify the definition of a "dwelling":

Courts have found two factors relevant in determining whether a facility is a dwelling under the FHA: (1) "whether the facility is intended or designed for occupants who 'intend to remain in the [facility] for any significant period of time'"; and (2) "whether those occupants would 'view [the facility] as a place to return to' during that period." Lakeside Resort Enterps. v. Bd. of Supervisors of Palmyra Township, 455 F.3d 154, 158 (3d Cir. 2006); see Schwarz v. City of Treasure Island, 544 F.3d 1201, 1215-16 (11th Cir. 2008); Cohen v. Township of Celtenham, 174 F. Supp. 2d 307, 323 (E.D. Penn. 2001); see also Hughes Mem'l Home, 396 F. Supp. at 549 (holding that children's home is a dwelling because the home is more than a place of temporary sojourn to the children who live there).

In cases where shelters allow extended stays (in this case, up to 120 days), it could be considered a "dwelling":

In Woods v. Foster, 884 F. Supp.1169, 1173-74 (N.D. Ill. 1995), the District Court for the Northern District of Illinois held that, under the generous construction to be given to the FHA, a homeless shelter was a "dwelling" because the individuals who stayed at the shelter had no other place to "return to" or reside. The shelter at issue in Woods provided housing for homeless families and assisted those families in obtaining other services, including permanent housing. Id. at 1171. The Woods court noted that although the length of time an individual expected to live at the shelter was a factor in determining whether the shelter was a "residence" and thus a "dwelling," it was not the exclusive factor. Id. at 1173. "Because the people who live in the Shelter have nowhere else to 'return to,' the Shelter is their residence in the sense that they live there and not in any other place." Id. at 1173-74. The court was not persuaded that a one-hundred-twenty day stay-which the defendants claimed was the maximum period of time an individual was allowed to stay at the shelter-was a transient visit" making the shelter merely a form of accommodation, like a hotel. Id. at 1174. "The women in the Shelter inhabit the Shelter, although the length of time they live there depends on their success in finding more permanent housing. Their residence is not so short-lived or transient that the Shelter can be considered a mere public accommodation."

In Johnson v. Dixon, 786 F. Supp. 1, 4 (D.D.C. 1991), the District Court for the District of Columbia found it doubtful that an emergency overnight shelter would be subject to the FHA:

The Act, in terms, protects only "buyers" and "renters" from unlawful discrimination. Plaintiffs, and the other inhabitants of the two shelters, are neither. Such accommodations as they have had at the shelters in the past have been provided gratis by the [defendants]. It is, moreover, doubtful if "emergency overnight shelter," . . . i.e., a place of overnight repose and safety for persons whose only alternative is to sleep in the alleys or doorways, can be characterized as a "dwelling" within the Act, even if it may seem like home to them.

Various types of establishments have been considered as "dwellings" in the past:

summer bungalows, Columbus Country Club, 915 F.2d at 881

cabins for migrant farm workers, Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324, 1327-28 (D. Or. 1996);

a nursing home, Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1102 (3d Cir. 1996);

a drug-and-alcohol treatment facility, Lakeside Resort Enterps., 455 F.3d at 160;

a group home for recovering drug and alcohol addicts, Schwarz v. City of Treasure Island, 544 F.3d 1201, 1215-16 (11th Cir. 2008)

a group home for children, Cohen v. Township of Celtenham, 174 F. Supp. 2d 307, 323 (E.D. Penn. 2001);

a former office building converted to a hospice facility for AIDS patients, see Baxter v. City of Belleville, 720 F. Supp. 720, 721 (S.D. Ill. 1989).

In the specific case of the Union Rescue Mission in Boise, Judge Edward J. Lodge describes the facility and makes the determination that is not a "dwelling" for the purposes of the Fair Housing Act.

Here, the undisputed evidence demonstrates that guests of the shelter component are not charged a fee for staying in the shelter; are assigned a bed in a dormitory-style room, a hallway, or the day room; generally are allowed to stay for a maximum of seventeen consecutive nights (except during the winter season months when the maximum stay is more flexible due to the danger that cold weather presents to homeless individuals during the night); are not guaranteed that they will have the same bed each night they return; with limited exceptions, are not allowed to stay at the shelter during the day, are required to leave the shelter every morning by 8:00 a.m., and may not return, except for lunch, until 4:00 p.m.; are not allowed to leave the shelter once they arrive in the evening; generally are not allowed to stay at the shelter on a particular evening if they do not check in during the designated hours; are not allowed to personalize the bed area assigned to them or leave belongings in their bed area; and, with extremely limited exceptions, are not allowed to receive phone calls, mail, or have visitors at the shelter. The court finds that the shelter is neither intended nor designed for occupants who intend to remain there for any significant period of time. See Lakeside Resort, 455 F.3d at 158. Moreover, although shelter guests may have the subjective intent of returning to the shelter, see id., the court finds that the conditions under which a guest may stay at the shelter demonstrate that the shelter is not "a temporary or permanent dwelling place, abode or habitation to which one intends to return," but is instead a "place of temporary sojourn or transient visit." Hughes Mem'l Home, 396 F. Supp. at 549 (quoting Webster's Third New Int'l Dictionary); see Johnson, 786 F. Supp. at 4. Accordingly, the court holds that the homeless shelter is not a "dwelling" subject to the FHA. (emphasis added)

Now this takes us back to Maryland law.  ?20-705 of the Maryland State Government Code is very clear about what is covered under the Maryland fair housing law:

(1) refuse to sell or rent after the making of a bona fide offer, refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, disability, marital status, familial status, sexual orientation, or national origin;

(2) discriminate against any person in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection with the sale or rental of a dwelling, because of race, color, religion, sex, disability, marital status, familial status, sexual orientation, or national origin;

(3) make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, disability, marital status, familial status, sexual orientation, or national origin, or an intention to make any preference, limitation, or discrimination;

(4) represent to any person, because of race, color, religion, sex, disability, marital status, familial status, sexual orientation, or national origin, that any dwelling is not available for inspection, sale, or rental when the dwelling is available; or

(5) for profit, induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person of a particular race, color, religion, sex, disability, marital status, familial status, sexual orientation, or national origin.  

(emphasis added)

And just a reminder from our last blog, the definition of "dwelling" from 20-701(d) of the Maryland State Government Code:

(d)  Dwelling.- "Dwelling" means:

(1) any building, structure, or portion of a building or structure that is occupied, or designed or intended for occupancy, as a residence by one or more families; and

(2) any vacant land that is offered for sale or lease for the construction or location on the land of any building, structure, or portion of a building or structure described in item (1) of this subsection.  

and one of the definitions for a type of public accommodation from 20-301(1) of the Maryland State Governmetn Code:

(1) an inn, hotel, motel, or other establishment that provides lodging to transient guests

(emphasis added)

There is recent and substantial federal case law that can be depended on to argue that an emergency homeless shelter would not be considered a "dwelling" subject to the federal Fair Housing Act.  The Maryland State Government Code does not provide any specific codification that would add any additional definition to "dwelling" that extends the state fair housing laws to include emergency homeless and domestic violence shelters.  Equality Maryland has not been able to produce any case law or public notices from the Maryland Commission on Human Relations that would interpret the Maryland State Government Code any differently.  If I was a judge (especially a conservative judge) looking at a case based on the existing law and the Boise case, I would definitely rule that an emergency homeless shelter in the state of Maryland would not be a "dwelling" but instead, a public accommodation.  

The bottom line, HR-235 without public accommodation may protect the transgender homeless and those escaping domestic violence with long term public housing and voucher housing but it does not protect the emergency need for immediate shelter.  

So with that, we have determined that HR-235 without public accommodation will not protect:



emergency access to homeless shelters

emergency access to domestic violence shelters

employment access to jobs where restroom usage would be in public places (for example, shopping malls and jobs involving driving routes)

access to public and private educational institutions

access to public transportation services

access to the ability to function daily

With all of this on the line, having employment protection without public accommodation is not compatible.  In transgender law, employment and public accommodation must go together.  California learned this the hard way.  This is why all of the states that have gender identity (or "sex" defined to include gender identity) covered in their employment anti-discrimination laws also have public accommodation.  

HB-235 is overall bad legislation and we must stop it and come back with something different.