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COURT OF APPEALS DECISION DATED AND RELEASED July 6, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-2967
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DIANA LINDSEY,
Plaintiff-Appellant,
v.
NOB HILL PARTNERSHIP,
APARTMENTRY, INC., OF
WISCONSIN,
ROBERT BORCHERDING,
and BARBARA BOUSLOUGH,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Dane County:
DANIEL R. MOESER, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER CURIAM. Diana Lindsey appeals from a judgment
dismissing her complaint, which alleged seven causes of action for housing
discrimination. We affirm in part,
reverse in part and remand.
According to the
complaint, Lindsey is a woman with disabilities who receives Section 8 rental
assistance pursuant to 42 U.S.C. §
1437f, and lives at the Nob Hill Apartments in Madison, Nob Hill Partnership
owns it, Apartmentry, Inc., manages it, Robert Borcherding is the general
partner of Nob Hill, and Barbara Bouslough is an employee of Apartmentry.
Lindsey's disability is
paraplegia, necessitating use of a wheelchair.
The complaint alleges the history of her tenancy in the apartment and
her attempts to have the defendants accept her Section 8 certificate. Attached to the complaint is an initial
determination by the Equal Rights Division (ERD) of the Department of Industry,
Labor and Human Relations finding probable cause that the defendants violated
various equal rights laws. The
complaint alleges seven claims. The
circuit court dismissed all for failure to state a claim upon which relief can
be granted.
In reviewing a motion to
dismiss, the facts pleaded must be taken as admitted. Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d
723, 731, 275 N.W.2d 660, 664 (1979).
Because the pleadings are to be liberally construed, a claim should be
dismissed only if it is quite clear that under no circumstances can the
plaintiff recover. Id.
Lindsey's first claim is
that the defendants violated § 101.22, Stats.,
by exacting different terms of rental from her due to her disability.[1] The circuit court concluded that Lindsey had
not alleged facts which showed that the defendants exacted different terms from
her.
On appeal, Lindsey
points solely to paragraph 42 of her complaint as support for this claim. Paragraph 42 alleges that the ERD issued a
charge and initial determination that there was probable cause to believe the
defendants discriminated against her due to her disability. Lindsey argues that "due
deference" should be given to the administrative agency's determination,
citing Plumbers Local No. 75 v. Coughlin, 166 Wis.2d 971, 978,
481 N.W.2d 297, 300 (Ct. App. 1992).
That case states that we defer to an agency's interpretation of
administrative rules. However,
deference to an agency conclusion usually occurs in the context of judicial
review of a final agency decision.
There is no authority for the notion that conclusions in the ERD's
initial determination are binding on a circuit court reviewing the sufficiency
of a complaint. We reject the argument.
We conclude Lindsey
fails to state a claim. Although the
complaint alleges that the defendants did not initially agree to the rental
terms she proposed, it does not allege facts showing that the defendants sought
to extract from her rental terms that were different from those offered other
tenants.
Lindsey's second claim
is that the defendants violated § 101.22, Stats., by refusing to discuss the terms of rental with her,
or by exacting different terms of rental from her, because of her lawful source
of income. The "exacting different
terms" part of this claim is insufficient for the same reason as the first
claim.
As for the allegation
that the defendants refused to discuss the terms of rental, such conduct would
be unlawful under § 101.22(2)(a), Stats. Lindsey's complaint alleges in paragraphs 24
through 32 the history of her efforts to have the defendants complete her
Section 8 paperwork. She alleges that
the defendants did not accept her papers when she brought them to the office,
and did not pick them up from her apartment in spite of her requests. Her attendant later brought them to the
office. We conclude these allegations
do not state a claim for refusal to discuss terms of rental.
Lindsey's third claim is
that the defendants violated the Fair Housing Act, 42 U.S.C. § 3604(f)(2), by
discriminating against her in their "rental practices" because of her
disability. However, that subsection
does not address "rental practices."
It provides that it is unlawful to discriminate against a person with a
handicap "in the terms, conditions, or privileges of ... rental of a
dwelling, or in the provision of services or facilities in connection with such
dwelling." A later subsection, §
3604(f)(3)(B), provides that "discrimination" includes "refusal
to make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford ... equal
opportunity to use and enjoy a dwelling."
(Emphasis added.) We construe
the third claim as alleging that the defendants failed to make reasonable
accommodations in their practices.
Lindsey's fourth claim
is that the defendants violated 42 U.S.C. § 3604(f) by "refusing and/or
unreasonably delaying making reasonable accommodations" to enable her to
use and enjoy her apartment. This claim
appears to be indistinguishable from the third claim, as we have construed it,
and therefore we address the third and fourth claims together as one.
The difference between an
"accommodation" and a "modification" is significant
here. We quoted above from 42 U.S.C. §
3604(f)(3)(B), which requires the owner to make "reasonable
accommodations." Subsection
(f)(3)(A) requires the owner "to permit, at the expense of the handicapped
person, reasonable modifications of existing premises occupied ... by such
person if such modifications may be necessary to afford such person full
enjoyment of the premises." Thus,
"modifications" are made to the physical "premises," while
"accommodations" are made in "rules, policies, practices, or
services." Modifications must be
paid for by the tenant, while accommodations need not be.
Lindsey argues that her
"reasonable accommodation" claim is supported by paragraphs 37
through 41 of her complaint.[2] Paragraph 37 alleges that "[a]t all
times relevant to this complaint" the defendants have maintained the
management office at Nob Hill in an inaccessible manner due to a hill and a
flight of stairs. The circuit court
rejected this claim on the ground that making the office more accessible would
require modifications to the premises, and that Lindsey did not allege that she
requested and offered to pay for such modifications.
We agree that Lindsey
has not stated a claim that the defendants unlawfully failed to modify the
office. Nor has she stated a claim that
the defendants failed to make a reasonable accommodation, since, according to
the complaint, her attendant has been able to deliver necessary papers to the
office.
Paragraph 38 alleges that
shortly after renting her apartment, Lindsey requested a parking stall with a
"handicapped" sign, and defendant Bouslough informed her that she
would have to buy the sign. After
Lindsey continued to insist that the defendants were responsible for posting
the sign, they did so. The circuit
court viewed this claim as requiring a modification, and rejected it because
Lindsey again failed to allege that she offered to pay for the modification. Lindsey argues that this is actually an
accommodation because it relates to the use of parking, which she describes as
a service. We disagree.
Installation of a
handicapped parking space is a modification of the premises. If we were to accept Lindsey's argument,
then virtually every request for a modification could be recast as an
accommodation simply by phrasing it in terms of the service provided by that
part of the premises to be modified.[3] If it requires a physical alteration of the
premises, it is a modification. Because
Lindsey's request for handicapped parking was for a modification, and because
her complaint alleges that she insisted the defendants pay for it, paragraph 38
does not state a claim.
Paragraph 39 alleges
that during the winter of 1992-93 Lindsey "was forced to complain to the
management ... on numerous occasions that the sidewalk and the handicapped
parking spot were not shovelled which made it virtually impossible for her to
get out of the building due to her dependence on a wheelchair." The circuit court concluded:
[I]t
is well established that in Wisconsin the practicality of not allowing any
accumulation of snow must be considered in determining whether an obstacle
created by snow should have been removed.
See Stippich v. Milwaukee, 34 Wis.2d 260, 271, 149 N.W.2d 618
(1967). The Court agrees with the
defendants that it would have been unreasonable for the plaintiff to request that
the sidewalk in front of her apartment be completely cleared of snow at all
times during an entire winter. Such
maintenance would be impractical if not impossible.
We do not read Lindsey's
complaint so broadly. It does not
allege that the only reasonable accommodation was for the defendants to keep
the walk cleared of snow at all times during an entire winter. Snow shovelling is a service. It may be reasonable for the property owner
to make some accommodation in the form of more frequent, prompt or thorough
shovelling. Just how much accommodation
would be reasonable and whether the defendants met that standard need not be
determined from the complaint.
Liberally construed, paragraph 39 alleges sufficient facts to state a
claim.
Paragraphs 40 and 41
allege that Lindsey's mailbox and apartment door chain lock are located in
positions that she cannot reach. These
are modifications. Lindsey does not
allege that she requested the modifications or that she offered to pay for
them. These paragraphs do not state
claims.
Therefore, we conclude
that Lindsey states a claim that the defendants failed to make reasonable
accommodations in the shovelling of snow, but that her third and fourth claims
were otherwise properly dismissed.
Lindsey's fifth claim is
that the defendants violated the state law which is analogous to the federal
law at issue in the preceding claim, § 101.22(2r)(b)3, Stats.
The circuit court's analysis of this claim was essentially the same as
for the preceding one, as are the parties' arguments on appeal. We reach the same conclusion. Lindsey states a claim only with respect to
the defendants' failure to make reasonable accommodations in shovelling snow.
Lindsey's sixth claim is
that the defendants violated the Fair Housing Act, 42 U.S.C. § 3617, by
"unlawfully interfering, on the basis of her disability, with [her] rights
to the exercise of or enjoyment of the right to rent an apartment due to her
disability and have her disabilities reasonably accommodated." That statute makes it "unlawful to
coerce, intimidate, threaten, or interfere with any person in the exercise or
enjoyment of, or on account of [her] having exercised or enjoyed, ... any right
granted or protected by [42 U.S.C. §§ 3603, 3604, 3605 or 3606]." The circuit court reasoned that this statute
"supplements the substantive rights granted by federal housing
discrimination law by protecting persons who have exercised these rights,"
and that Lindsey had not alleged facts showing a violation of this provision.
On appeal, Lindsey
argues that paragraphs 37 through 41 and 43 support this claim. We described each of those paragraphs
above. They do not allege facts showing
interference by the defendants. Rather,
they allege or attempt to allege substantive violations of the housing
laws. Lindsey argues, in effect, that
every substantive violation of the housing law is also an attempt to
"interfere with" her exercise of the rights provided by the
substantive provisions. Lindsey
provides no support for such a broad reading of § 3617, and we reject it.
Lindsey's seventh claim
is that the defendants violated 42 U.S.C. § 1437f(t) by discriminating against
her "through refusing to accept her Section 8 certificate." The statute makes it unlawful for a property
owner who has entered a contract for housing assistance payments under that
section to "refuse to lease any available dwelling unit" to a holder
of a certificate or voucher. We
conclude that Lindsey fails to state a claim.
Her complaint does not allege that she has been refused a lease. There is no allegation that the defendants
refused to allow her to become a tenant at any time.
In summary, we conclude
that the trial court properly dismissed Lindsey's complaint except for the
parts of her third/fourth claim and fifth claim which allege the defendants
failed to make reasonable accommodations in shovelling snow.
Regarding costs in this
appeal, we note that Lindsey's complaint alleged a total of six claims,[4]
all of which were dismissed. On appeal,
she has prevailed with respect to approximately one-quarter of two claims, or
approximately one-twelfth of her complaint.
Therefore, we conclude that she is entitled to one-twelfth of her costs.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 101.22(2)(b), Stats., makes it unlawful for any person to discriminate on the basis of disability by exacting different or more stringent terms for the lease of housing.
[2] Lindsey also cites paragraphs 42 and 43. However, these merely cite to the ERD determination which we concluded above is not relevant.