The Star Beacon; Ashtabula, Ohio

February 17, 2013

Failing the test can cost a bundle

Ashtabula County landlords feel entrapped by fair housing procedures

Star Beacon

— Clark and Cynthia Heath say they just wanted to make their apartment as convenient and safe as possible for the handicapped individual interested in renting from them. So, during the interview with a person representing the renter, they asked about the nature of the disability.

A year or so later, the Saybrook Township couple learned they had asked the wrong question. Indeed, they had broken the fair housing law and were in trouble to the tune of $1,500, the penalty demanded by the Fair Housing Resource Center (FHRC) in Painesville.

The Heaths would later learn that the person who inquired about renting to a handicapped individual was actually a tester hired by the FHRC to see if landlords in the region were discriminating against renters with disabilities.

“We were shocked,” said Clark Heath, who at the time owned 43 apartments. “We had to try to remember what happened (during the interview).”

“It is their word against your word,” Cynthia Heath adds. “They said we were discriminating, but I was just trying to make everything in the apartment accessible for the renter and make it so we could rent to him.”

According to the Fair Housing Institute, testing as a means to uncover evidence of race discrimination in rental housing was first approved by the Supreme Court in 1982. The Fair Housing Amendments Act in 1988 expanded testing to disability discrimination.

Testing is done by private fair housing organizations, which hire testers to pose as renters and thereby gauge compliance with federal and state requirements.

The Department of Housing and Urban Development (HUD) partners with fair housing organizations such as the FHRC to conduct “preliminary investigation of claims,” which includes sending testers to properties suspected of practicing housing discrimination.

The testers have no intentions of actually renting, they are just checking for compliance. They are given a scenario to act out and a list of landlords to call, often selected from the classified section of local newspapers.

While fair-housing advocates say the program is underfunded and there needs to be more extensive testing, Ohio appears to lead the nation with its 13 fair housing agencies: two in Akron, three in Cleveland, and one each in Cincinnati, Columbus, Lancaster, Toledo and Lake, Lorain, Montgomery and Trumbull counties. The agencies receive funding from HUD to hire testers, and while they are non-profit, private entities, they appear to be endowed with a policing function that commands the resources of the Ohio Attorney General and Ohio Civil Rights Commission, who go to bat for the agency and help them collect the hefty fines levied against landlords who miss the mark.

The Star Beacon made a request to the FHRC under the Freedom of Information Act for a list of citations issued as a result of its testing activity. The request was denied, although the organization receives federal funding to conduct the testing.

The Fair Housing Institute states that information from the files of open cases will not be released except to the party that submitted it. According to the institute, the identity of individual testers is kept secret unless and until a case proceeds to litigation. The testers thus enjoy “anonymous witnesses” status.

The claim is taken straight to the Ohio Attorney General for prosecution without any determination of the actual damages, notes Tarin Hale, a Centerville, Ohio, lawyer who represents landlords cited by the FHRC.

“What is wrong is that the State of Ohio is not screening the claims, the State of Ohio is demanding payments to a third party without determination of actual damages, that the statute imposes mandatory attorney fees against the accused, the statute is ambiguous about what constitutes illegal discrimination, and there is no fair hearing before a neutral judiciary,” Hale said in an email.

The cheerful testers draw landlords into pre-scripted scenarios littered with landmines that test the landlord’s knowledge of housing discrimination law. Landlords are expected to know every detail of the law and consistently apply it to each person who inquires about renting.

Landlords say the law can be confusing and ambiguous, especially when it comes to gray areas like “therapy dogs.”

“It the (FHRC) really wanted to help us, they would say ‘This is a warning,’” says Tom Wochele of Hartsgrove Township, who, along with his wife Gayle, have a two-story apartment building. The upstairs apartment has a small porch on it and some prior renters with children allowed the youngsters to take their bicycles on the porch.

“We were very fearful of having young children around there because the parents were very negligent,” Gayle said.

The couple advertised their apartment as being in a “clean, quiet country setting,” and Gayle suspects the “quiet” served as a red flag for the FHRC tester. Gayle mentioned the safety issue of the porch to a woman who called to inquire about the apartment for herself and children.

“I made the mistake of talking to the (tester). She was so nice, and she still reported me,” Gayle said.

The couple decided to get an attorney, who negotiated a settlement with the FHRC. But it still cost the couple more than $4,000 for their effort to prevent a renter the heartache of losing a child to a fall.

“I feel we should have some right to decide what is the best situation for people who live there,” Gayle said.

“It’s just ludicrous to me,” said a Geneva landlord who was fined for allegedly discriminating against a disabled tester. The Geneva-area man did not want his name used in print because, as part of his settlement on the fines, he agreed there would not be any “retaliation” against the FHRC.

His case involved a tester who was allegedly looking for an apartment for her brother who had difficulty walking and owned a dog. The landlord, who had apartments both on the ground floor and second floor, suggested they meet to make sure the prospective tenant would be able to maneuver the stairs to the second-story apartment. He suggested that the brother consider the downstairs apartment, instead, because it would be easier to maneuver. But the tester reported that as a case of restricting a disabled person’s rental options.

A few weeks later, the same woman called the landlord and wanted to know if there was a ramp to an apartment because the potential renter was blind. The man recognized the woman’s voice and expressed his surprise that the brother suddenly had developed this new disability. He figured it was just someone wasting his time.

“I had no idea that the government was doing this,” the landlord said. “I thought it was a shyster.”

He received two citations for discrimination and, by the time he was done with fines and attorney fees, spent nearly $4,000. As part of the settlement, the landlord had to attend sensitivity training and have his confession of guilt published in a newspaper.

“I was displeased, but in the end, I paid the fine,” he said.

Rob Miller’s family has been in the real estate business since 1908. Miller, 58, of Austinburg, has 52 rental units, but after being hit with three discrimination citations as a result of a tester, “it makes you want to get out of the business,” Miller said.

The scenario upon which he was tested mirrored that of the Geneva landlord. The tester said she was looking for an apartment for her blind brother, who had a guide dog. She was interested in a second-floor apartment that Miller had advertised. There were 17 steps to the apartment and the staircase was open; snow removal was not provided. Miller requested that the potential renter come to the apartment and demonstrate to Miller’s satisfaction that he could safely maneuver the steps. He offered the alternative of a downstairs apartment and also asked about who would take responsibility for cleaning up the dog’s droppings in the yard.

Miller was cited for asking the fictitious handicapped person to do something a functional person would not be asked to do (prove they could go up and down the stairs safely), for suggesting the downstairs apartment would be a better choice and requesting the handicapped person take responsibility for cleaning up the dog’s messes.

He said when he received the letter advising him of the violations, Miller thought it was a joke. Even his attorney questioned it. Miller shopped the case around and found that attorneys had no interest in representing him against the Ohio Attorney General and Civil Rights Commission. The local attorneys told him to pay the fine and learn from his experience. It cost Miller $6,000 and a lot of stress.

“It helped cause a triple bypass operation,” he said of the additional stress the litigation put on his heart. “I’d like to go after the state agencies and all of them. I feel like I’ve been mistreated, stressed out. It’s been a horrible nightmare.”

Miller feels that it will take a concerted effort from state and federal lawmakers to stop the nuisance testing. Many landlords feel the testing is just a way to keep state attorneys busy and deflect attention from bona fide cases of housing discrimination. They say that the housing agencies know that small landlords are easy targets for sizeable fines because they don’t have the resources to fight the charges.

“It would take eight to 10 years to fight it and hundreds of thousands of dollars,” Miller said. “There is no way to beat them. Why do it? Why go bankrupt trying to defend something even though you are not guilty?”

No one in Ashtabula County knows more about the frustration and legal expense of fighting a fair housing discrimination charge than North Kingsville resident Helen Grybosky and her son, Gary. With help from Tarin Hale, they are fighting two violation charges brought about as a result of Helen’s responses to inquiries about a fake renter’s therapy dog and a mother who wanted to rent an upstairs apartment for her children (Grybosky offered the downstairs unit, instead). Attorney fees and fines in the four-year-old case exceed $100,000 and there is no end in sight for the 80-year-old landlord, who has left her Conneaut property vacant rather than risk being the target of yet another tester.

Indeed, Rob Miller feels that the aggressive testing program is discouraging landlords from developing new rental options, which, ironically, makes it even more difficult for those most likely to be discriminated against to find affordable housing.

“There are not enough rentals in the county to begin with,” Miller said. “You can’t afford to build them anymore, and (cities) are making it so tough on you with the inspections. You can’t raise the rent to justify (the increasing expenses and fees) because everybody is so poor in this county.”