Jankowski Lee & Associates v. Cisneros

• Decision Date: 26 August 1996
• Docket Number: No. 95-3051,95-3051
• Citation: 91 F.3d 891
• Parties: , 8 NDLR P 341 JANKOWSKI LEE & ASSOCIATES, River Park Development Corporation, John R. Pankratz, et al., Petitioners, v. Henry G. CISNEROS, Secretary, Housing and Urban Development, Respondent, and Andrew Rusinov, Intervenor-Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 891

91 F.3d 891

19 A.D.D. 619, 8 NDLR P 341

JANKOWSKI LEE & ASSOCIATES, River Park Development Corporation, John R. Pankratz, et al., Petitioners, v. Henry G. CISNEROS, Secretary, Housing and Urban Development Respondent and Andrew Rusinov, Intervenor-Respondent.

No. 95-3051.

United States Court of Appeals Seventh Circuit.

Argued April 16, 1996.

Decided July 30, 1996.

As Amended Aug. 26, 1996.

William E. Hughes, III (argued), Whyte, Hirschboeck & Dudek, Milwaukee, WI, for Jankowski Lee & Associates, River Park Development Corporation, John R. Pankratz, Sue Sellin.

Marie K. McElderry, Jessica Dunsay Silver, Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Michael Kalven, U.S. Department of Housing and Urban Development, Chicago, IL, Nelson Diaz, Department of Housing and Urban Development, Washington, DC, Michelle M. Aronowitz (argued), United States Department of Justice, Washington, DC, for Henry G. Cisneros.

Thomas J. Erickson, Milwaukee, WI, for Andrew Rusinov.

Before ESCHBACH, MANION, and EVANS, Circuit Judges.

ESCHBACH, Circuit Judge.

On March 8, 1993, Andrew Rusinov filed a complaint against River Park Apartments (RPA), alleging that Petitioners Jankowski Lee & Associates and Sue Sellin discriminated against him based on his handicap in violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., (the "FHA") by refusing to make a reasonable accommodation in their rules, policies, practices and services related to parking. On September 30, 1994, the Department of Housing and Urban Development (HUD) issued a Determination of Reasonable Cause and Charge of Discrimination against Jankowski Lee and Associates, River Park Development Corporation, John R. Pankratz, and Sue Sellin (collectively, "Petitioners"), alleging that they had violated 42 U.S.C. §§ 3604(f)(2) and 3604(f)(3)(B). Administrative Law Judge Robert Andretta (the "ALJ") held a two-day hearing and issued an "Initial Decision and Order" holding that Petitioners had violated the FHA by failing to accommodate Rusinov's need for a parking space as close as possible to his apartment building. The ALJ enjoined Petitioners from discriminating against Rusinov, required Petitioners to assign Rusinov his own parking spot as close as possible to the RPA building, assessed a civil penalty of $2,500 against Petitioners jointly and severally, and awarded Rusinov $2,500 in compensatory damages. The Initial Decision and Order became the final order of the Secretary of HUD.

Petitioners seek review in this court of the final order of the Secretary. For the following reasons, we deny the request to review and affirm the Secretary's order.

I.

Mr. Rusinov was diagnosed with multiple sclerosis ("MS") in 1982. For the first five years after the onset of the disease, Rusinov was severely disabled with paralysis from the waist down, loss of control of bodily functions, temporary blindness, slurred speech, and anxiety attacks. Since then, Rusinov's condition and the severity of MS's symptoms have varied with remissions, exacerbations, and relapse. Rusinov does everything in his power not to appear disabled because he feels that he is treated with less respect and credibility once other people see him as disabled. The documentation is, however, unequivocal that Rusinov's MS severely limits his activities.

In 1986, Rusinov moved into an apartment in the RPA complex. On his application for an apartment at RPA, Rusinov indicated that he was disabled and that he had MS. Petitioner Jankowski Lee & Associates is the managing agent for the owners of RPA. Petitioner Sellin is employed by RPA as the on-site manager.

The RPA complex consists of two apartment buildings. Most of RPA's residents are elderly and many use wheelchairs, walkers, or canes. The complex includes a total of 108 parking spaces. Before 1993, visitors were permitted to park in the RPA lot. In 1993, parking was limited to tenants only. Parking at RPA is permitted on a "first come, first served basis." As of December 1994, there were approximately 96 persons registered to park in the lot. In 1986, when Rusinov moved into RPA, there was one handicapped space at each of the two buildings. By March 1993, there were two handicapped spaces at each building.

Rusinov has had a car since he first moved into RPA. He has always had problems locating a space close to his building because the handicapped spaces and the nonhandicapped spaces close to the entrance are usually filled. Rusinov requires a large space that is close to the building for a number of reasons. Rusinov cannot get in and out of his car if it is parked in a narrow spot. Rusinov has trouble walking and he cannot walk great distances without resting. Rusinov does not have full, voluntary control of his bladder and carries a portable urinal for those times when he cannot find a space close enough to his apartment to use his bathroom.

In the fall of 1992, Rusinov and his father visited the RPA management office twice regarding parking. On the first visit, they asked the office secretary for an assigned space or a "sufficient" number of handicapped spaces to accommodate Rusinov's disability. The secretary, who had no authority to grant the request, told them she did not think it was possible and that they needed to speak to the manager, Petitioner Sellin. Rusinov and his father later returned to the office and told Sellin that Rusinov needed an assigned parking space because of his disability. Although this was the first time that Sellin spoke personally with Complainant, she had been informed by the office secretary that Rusinov had previously requested an assigned parking space. Without further inquiry, Ms. Sellin denied Rusinov's request and the office secretary told Rusinov and his father that Rusinov would have to take his chances in finding a spot close to the building.

Sellin testified that she knew Rusinov had MS, but that she did not know the degree to which the disease affected Rusinov's mobility. She denied the request because she did not consider it to be a reasonable request given that she had seen Rusinov walking to and from his car without any apparent difficulty.

In the complaint filed with HUD on March 8, 1993, Rusinov states, "I have asked the management to either increase the number of handicap spots or assign me a parking spot." Shortly after Rusinov filed his complaint with HUD, Petitioners increased the number of handicapped parking spaces at each building from two to four and added a van-accessible handicapped parking space to the lot in front of Rusinov's building.

II.

Petitioners present two reasons why we should overturn the Agency's decision: First, Petitioners were not aware of the extent to which Rusinov's condition limited his mobility; and second, Petitioners argue that, as a matter of law, they did not violate the FHA because they granted Rusinov's request when they increased the number of handicapped parking spaces. We reverse the Secretary's decision only if it is "not in accordance with law," "without observance of procedure required by law," or "unsupported by substantial evidence." 5 U.S.C. § 706(2)(A), (D), and (E); Jancik v. HUD, 44 F.3d 553, 555 (7th Cir.1995). We review the entire record, but we do not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the agency. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994).

Petitioners' first argument is essentially that Rusinov bore the burden of producing documentation establishing the extent of his handicap and his need for the requested accommodation. Petitioners admit that they knew that Rusinov had MS, but they argue that they were unaware that Rusinov's MS affected his mobility such that he needed an assigned parking space. Petitioners' denial of Rusinov's request based on their lack of knowledge of the extent of his injury is simply a ruse to avoid the penalty for violating the FHA. It is telling that Petitioners denied his request without asking Rusinov for more information regarding his condition. Regardless of their motive for pursuing the issue, however, Petitioners' position is untenable.

The FHA prohibits discrimination "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). This prohibition on discrimination also makes it unlawful to refuse "to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling[.]" 42 U.S.C. § 3604(f)(3)(B). It is clear that Rusinov's MS is a handicap within the meaning of the FHA. 42 U.S.C. § 3602(h) (" 'Handicap' means, with respect to a person--(1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment...."); Shapiro v. Cadman Towers, Inc., 844 F.Supp. 116, 123 (E.D.N.Y.1994), aff'd, 51 F.3d 328 (2d Cir.1995); cf. Carter v. Casa Central, 849 F.2d 1048 (7th Cir.1988) (Multiple Sclerosis is a "handicap" under analogous section of the Rehabilitation Act of 1973). The ALJ appropriately found that Rusinov is a handicapped individual under the meaning of the FHA, and Petitioners do not challenge that finding.

Petitioners were aware that Rusinov had MS, Rusinov's MS qualified as a handicap, Rusinov informed Petitioners that he required a parking space close to his building because of his handicap, and Rusinov requested an assigned parking space as a reasonable accommodation. At that point, Petitioners had a duty to make a reasonable accommodation. They did not make a reasonable accommodation, so they violated the FHA. It is irrelevant whether Rusinov's mobility did not "appear" to Petitioners to be...