This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Cornwell and Taylor LLP,
d/b/a Colonial Village,
Gary Moore, et al.,
Filed December 22, 2000
Ramsey County District Court
File No. C3001742
John F. Bonner, III, Robert J. Borhart, Bonner Dawson Borhart LLP, 1500 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for appellant)
Diane Marie Dube, Southern Minnesota Regional Legal Services, Inc., Suite 300, Minnesota Building, 46 East Fourth Street, Saint Paul, MN 55101 (for respondents)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Mulally, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant manufactured-housing park owner challenges the district court’s determination that under the federal Fair Housing Amendments Act it had a duty to reasonably accommodate respondent tenant’s handicap and thus could not evict him for causing a disturbance in the park. Because we conclude appellant had a duty to reasonably accommodate respondent and did not meet its burden of proving that he posed a direct threat to others, we affirm in part, but because the district court did not make a determination of whether the requested accommodation was reasonable, we reverse and remand in part.
In February 2000, appellant Cornwell and Taylor LLP, d/b/a Colonial Village, brought an unlawful-detainer action against respondent Gary Moore and his wife. Colonial Village is a manufactured-home park where the Moores have rented a lot since 1997. Colonial Village sought a writ of restitution pursuant to Minn. Stat. § 327C.09, subd. 5 (1998), which allows manufactured-home park owners to recover possession of a lot when a resident acts in the park “in a manner which endangers other residents or personnel.”
Appellant’s unlawful-detainer action was based on a June 1999 incident at Colonial Village. Moore, who in 1996 was diagnosed with a schizoaffective disorder and a thyroid condition, stopped taking his medication sometime in 1998. On the day of the incident, he was in a delusional state, and his wife had tried to convince him to go to the hospital. Moore, who had been watching a television news story about the “ethnic cleansing” of Albanians by Serb forces, slapped, hit, and choked his wife, believing she might be a Serb. She went to a neighbor’s home to call the police. A few minutes later, Moore walked out of Colonial Village to an adjacent public park with a loaded .22-caliber rifle over his shoulder. There is conflicting evidence on whether Moore intended to harm himself or his wife with the gun. The police arrested Moore a short time later.
Moore was immediately referred for a rule 20 psychiatric examination. The examining psychiatrist found him to be “blatantly psychotic” and incompetent to stand trial because of his “grossly disturbed mental state.” Moore was committed as mentally ill to Anoka Metro Regional Treatment Center (“AMRTC”).
Sometime after Moore was committed, park manager Carol Mueller learned of the incident. She spoke with Ms. Moore, who informed Mueller that she did not want her husband to return to Colonial Village when he was released from AMRTC. On July 8, 1999, Mueller sent a letter to Moore instructing him to move out by August 8.
At AMRTC, Moore responded quickly to new medication, which reduced his paranoia, delusions, and mood swings. He also received treatment for a chemical-dependency problem that had exacerbated his mental illness. According to the senior staff psychiatrist at AMRTC, Moore’s therapeutic response to the new medication was dramatic. He remained at the treatment center for 60 days, and both he and Ms. Moore participated in an educational program at AMRTC regarding his mental illness. In early August, Ms. Moore, having observed her husband’s success in the treatment program, changed her mind and asked Mueller if Moore could return to Colonial Village after his discharge. Included with her request was a copy of an eight-point provisional-discharge plan, which AMRTC staff had developed with Moore to help him return to independent living. In late August, Mueller sent a letter to Ms. Moore declining her request because “[h]is behavior is so threatening we can’t imagine anything else we can do.”
Notwithstanding this response and the notice to vacate, Moore returned to Colonial Village when he was released from AMRTC. In early September 1999, Moore’s attorney sent a letter to Mueller, stating that because Moore was disabled and was “currently in a program of outreach, counseling and monitoring,” Colonial Village had a duty to reasonably accommodate him by rescinding its notice to vacate. Colonial Village did not respond to this letter. In late October, Mueller learned that Moore had returned to Colonial Village. She refused the Moores’ November rent check. In early November, Colonial Village’s attorney sent Moore a letter instructing him to vacate the park immediately, pursuant to the July notice to vacate. He did not leave, and the Moores continued to submit rent checks, which Colonial Village refused to accept.
Following an evidentiary hearing on Colonial Village’s unlawful-detainer complaint, the district court issued an order denying Colonial Village’s requested writ of restitution. Colonial Village appeals.
Colonial Village sought a writ of restitution pursuant to Minn. Stat. § 327C.09, subd. 5 (1998), which allows a manufactured-home park owner to recover possession of a lot when a resident acts in the park “in a manner which endangers other residents or park personnel.” Moore argues that Colonial Village is barred from evicting him by Title VIII of the Civil Rights Act of 1968, as amended by 42 U.S.C. §§ 3601-3631 (1988) (the “Fair Housing Amendments Act” or “FHAA”). The FHAA provides that it shall be unlawful to
discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of that buyer or renter.
42 U.S.C. § 3604(f)(1). Discrimination on the basis of handicap includes
a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.
42 U.S.C. § 3604(f)(3)(B).
Colonial Village alleges that Moore did not provide park management with adequate information to assess his accommodation request, and therefore the district court erred in determining that Colonial Village had a duty to accommodate his handicap. This court reviews the record to determine whether or not the evidence as a whole supports the district court’s determinations. Bohm v. L.B. Hartz Wholesale Corp., 370 N.W.2d 901, 905 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).
Colonial Village asserts that Moore had an obligation under the FHAA to engage in an “interactive process” in reaching an accommodation. It urges this court to follow precedent under the employment provisions of the Americans with Disabilities Act, 42 U.S.C. § 12111-12117 (“ADA Title I”). Colonial Village argues that this precedent requires parties to engage in an interactive process and thus precludes individuals claiming denial of reasonable accommodation from relying at trial on rationalizations not raised during the interactive process. See, e.g. Valentine v. American Home Shield Corp., 939 F. Supp. 1376, 1401 (N.D. Iowa 1996) (stating that employee has “obligation in the interactive process to provide the employer with enough information for the employer to gain an understanding of what action to take” and that evidence not presented until “the eve of trial more than two years after the alleged failure to accommodate” does not meet this obligation).
The ADA contains no reference to an interactive process or an obligation to engage in one, but ADA Title I regulations provide:
To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation.
29 C.F.R. § 1630.2(o)(3). The Equal Employment Opportunity Commission’s ADA Title I Interpretive Guidance also states:
Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommoda-tion is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.
29 C.F.R. § 1630, App. § 1630.9. Federal circuit courts of appeal that have considered these regulations and guidance have interpreted them differently. Some have concluded that both the employer and employee have an affirmative obligation to act in good faith and assist in the search for an appropriate reasonable accommodation. See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000); Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 157 (3d Cir. 1999); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996). Other circuit courts have concluded that no such obligation exists. See, e.g., Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997); White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995). The Eighth Circuit Court of Appeals has adopted a third interpretation, under which there is “no per se liability” for an employer who fails to participate in an interactive process but failure to do so “is prima facie evidence that the employer may be acting in bad faith.” Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir. 1999).
But while some courts have imposed an obligation on employers and employees to engage in an interactive process, there is no language in the FHAA or the relevant sections of the Department of Housing and Urban Development’s implementing regulations (“HUD regulations”), 24 C.F.R. § 100.200-100.205, imposing such an obligation on landlords and tenants and no reported cases that do so. The district court did not err in concluding that the FHAA did not impose a duty on Moore to engage in an interactive process.
Colonial Village also argues that Moore did not provide it with enough information to assess whether he posed a direct threat to the health and safety of others. The FHAA does not require that a dwelling be made available
to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.
42 U.S.C. § 3604(f)(9). Colonial Village notes the district court’s finding that “[t]he information provided to Mueller,” that is, the eight-point provisional discharge plan sent to her in August 1999, “did not give her a substantial basis on which to conclude that the park’s residents would be safe and that Moore constituted no danger.” But in determining whether a tenant has provided his landlord with adequate information regarding his handicap, courts look at the information available to the landlord on the date the tenant was actually evicted. Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997). Therefore, rather than considering the information available to Colonial Village in August 1999, when Mueller denied Ms. Moore’s request that Moore be allowed to return, we consider the information available to it six months later, when it filed its unlawful-detainer action. By that time, Colonial Village had received a letter from Moore’s attorney, which stated:
Mr. Moore suffers from various conditions including, but not limited to, Schizo-affective disorder, bi-polar depression and he has hyperthyroidism. [These] conditions can all be controlled with proper medication and have been controlled that way in the past. * * * Mr. Moore has a plan in place to make sure he stays on his medication. It would appear that, based on Mr. Moore’s mental disabilities and the fact that he is currently in a program of outreach, counseling and monitoring, you have an affirmative obligation to reasonably accommodate him. I would request that you rescind your notice to vacate based on the facts stated above.
If, after receiving this letter, Colonial Village was skeptical of Moore’s alleged disability or of its ability to reasonably accommodate his needs, it was incumbent on Colonial Village to request documentation or open a dialogue. Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996). The record shows that Colonial Village did not request documentation from or attempt to open a dialogue with Moore before filing its unlawful-detainer action.
II. Direct Threat
Colonial Village also argues that the district court erred in requiring it to carry the burden of proving at trial that the requested accommodation was unreasonable. But the district court’s order does not suggest that it placed such a burden on Colonial Village. What the district court did do is state that “the burden is on the landlord” to “demonstrate that no ‘reasonable accommodation’ will eliminate or acceptably minimize any risk” that Moore “imposes on other residents.” This is a correct statement of a landlord’s burden to prove that a tenant poses a direct threat. See, e.g., Roe v. Housing Auth. of Boulder, 909 F. Supp. 814, 822-23 (D. Colo. 1995); Roe v. Sugar River Mills Assoc., 820 F. Supp. 636, 640 (D.N.H. 1993); see also Township of West Orange v. Whitman, 8 F. Supp. 2d 408, 428 (D.N.J. 1998) (describing the direct-threat exclusion as “an affirmative defense.”).
The facts in Sugar River Mills and Housing Auth. of Boulder are similar to the present case. In Sugar River Mills, an elderly male resident suffering from mental illness began exhibiting aggressive and abusive behavior towards other residents and his apartment manager. His behavior eventually led to his conviction for disorderly conduct and an eviction action; the defendants argued that, because he posed a threat to the health and safety of others, the protections of the FHAA did not apply. Sugar River Mills, 820 F. Supp. at 639. Relying on the legislative history of the FHAA, the court concluded that accommodation of an individual’s handicap must be attempted before he or she is denied the benefits of the Act. Id. at 639-40. It found this interpretation “entirely consistent with Congress’ goal of eliminating housing discrimination based upon stereotypes, prejudice, or irrational fear of those who are ‘handicapped.’” Id. at 640.
Housing Auth. of Boulder involved a similar situation. There, the housing authority sought to evict a resident, who suffered from bipolar disorder and a hearing impairment, because of his abusive and threatening behavior, which included an incident in which he struck and injured another resident. The resident argued that the symptoms and related behavior associated with his conditions were controllable and could be readily accommodated, whereas the housing authority argued that he was not entitled to accommodation because he posed a direct threat to the health and safety of other residents. Housing Auth. of Boulder, 909 F. Supp. at 821-23. Reviewing the FHAA’s legislative history and the Sugar River Mills opinion, the court concluded that before a handicapped resident could lawfully be evicted, the housing authority “must demonstrate that no ‘reasonable accommodation’ will eliminate or acceptably minimize” any risk he poses to other residents. Id. at 822-23.
Here, the district court determined that Colonial Village failed to meet its burden of proving that no reasonable accommodation would eliminate or acceptably minimize any risk Moore might impose on other residents or its employees. The evidence as a whole supports this determination.
Apart from concluding that Colonial Village failed to prove that Moore presented a direct threat that no reasonable accommodation would eliminate, the district court made no determination of whether the particular accommodation requested by Moore was reasonable. Under the FHAA, landlords are required only to make those accommodations that are reasonable. 42 U.S.C. § 3604(f)(3).
Congress based the FHAA’s reasonable-accommodation provisions on the regulations and caselaw dealing with discrimination on the basis of handicap under the Rehabilitation Act. See H.R. Rep. No. 100-711 at 18, 25, 28 (1988), reprinted in 1998 U.S.C.C.A.N. 2173, 2179, 2186. Accordingly, courts look to Rehabilitation Act cases for assistance in interpreting the FHAA. See, e.g., Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 603 (4th Cir. 1997); Hovsons, 89 F.3d at 1101; Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334 (2nd Cir. 1995); United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416-17 (9th Cir. 1994). The Supreme Court has held that an accommodation is not reasonable if it imposes “undue financial and administrative burdens,” Southeastern Community College v. Davis, 442 U.S. 397, 412, 99 S. Ct. 2361, 2370 (1979), or requires “changes, adjustments, or modifications to existing programs that would be substantial, or that would constitute fundamental alterations in the nature of the program.” Alexander v. Choate, 469 U.S. 287, 301 n.20, 105 S. Ct. 712, 720 n.20 (1985) (quotation omitted).
Here, the district court determined that Moore was entitled to accommodation “so long as he is medication compliant, sober, [and] monitored by his case manager and psychiatrist.” The court also ordered Moore to provide Colonial Village with contact information for his case manager, psychiatrist, and probation officer “so that those persons can take action, as each deems fit, if any person relays any questionable behavior by [Moore].”
But the court made no findings on whether this accommodation might impose undue burdens on Colonial Village or require it to substantially modify or fundamentally alter the nature of its operations. Therefore we remand for findings on whether this accommodation is not reasonable because it (1) imposes undue hardships or undue financial and administrative burdens, or (2) requires changes, adjustments, or modifications to Colonial Village’s existing operations that are either substantial or constitute fundamental alterations in the nature of its operations. On remand, the district court may in its sole discretion reopen the record. We express no opinion on the outcome of the remanded issue.
Affirmed in part, reversed and remanded in part.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.