This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Beth Ann Hinneberg,





Big Stone County Housing

and Redevelopment Authority,



Filed December 28, 2004


Hudson, Judge


Big Stone County Housing

and Redevelopment Authority


James A. Lee, Jr., Legal Aid Society of Minneapolis, 430 First Avenue North, Suite 300, Minneapolis, Minnesota 55401-1780 (for relator)


William J. Watson, Big Stone County Attorney, 37 Northwest Second Street, Ortonville, Minnesota 56278 (for respondent)


            Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Relator received a Section 8 housing voucher from the Big Stone County Housing and Redevelopment Authority (HRA).  Relator sought to port her voucher to a different housing jurisdiction in Hennepin County and requested a modification of Big Stone County HRA’s portability policy to accommodate relator’s disability.  Following a hearing, the assistant director of Big Stone County HRA denied relator’s request for a reasonable accommodation.  Relator appeals the assistant director’s decision by writ of certiorari, arguing that the decision was erroneous as a matter of law because the ADA, FHAA, and analogous state legislation require respondent to modify its portability rules when reasonably necessary to accommodate a person’s disability.  We affirm.


Relator, Beth Ann Hinneberg, a resident of Hennepin County, applied for participation in respondent Big Stone County Housing and Redevelopment Authority’s Section 8 program.  Section 8 is a voucher program providing rental subsidies, paid directly to landlords, that supplement monthly rental payments made by tenant households.  Respondent operates the program with funding provided by the U.S. Department of Housing and Urban Development (HUD).  The program makes decent, affordable housing available to low-income households.  See generally 24 C.F.R. § 982.1 (2004); 42 U.S.C. § 1437f(a) (2000).

            Respondent granted relator’s application and issued her a voucher.  Relator thereafter made a written request, with the assistance of Ruth McVay, a senior social worker in the Hennepin County Behavioral Health Case Management Division, to use her voucher in Hennepin County in order to be near her current health care providers.  Relator sought a modification of respondent’s portability provisions to accommodate her disability.

            Respondent’s Section 8 administrative policy differentiates between portability requests made by voucher recipients who reside in respondent’s jurisdiction at the time they first submit their application and voucher recipients who were outside respondent’s jurisdiction when they applied.  The former may port their voucher—may lease a unit outside respondent’s jurisdiction—immediately following receipt of their voucher.  The latter cannot lease a unit outside of respondent’s jurisdiction for the first 12 months following admission to the program.  After one year, voucher recipients who applied while residing outside respondent’s jurisdiction may port their voucher.  Respondent’s administrative policy is consistent with HUD’s portability regulations, which permit individual public housing authorities to require non-resident applicants to reside within that housing authority’s jurisdiction for one year, but gives the individual public housing authorities discretion to allow portability during that 12-month period.  See 24 C.F.R. § 982.353(b), (c) (2004).

            Relator did not reside in respondent’s jurisdiction when she submitted her application for a voucher, and accordingly, respondent denied her request to port to accommodate her disability.

            The parties participated in an informal hearing on January 9, 2004, by speaker-phone, with a hearing officer.  Relator and Ruth McVay were present in Minneapolis.  At the hearing, relator and Ms. McVay presented evidence concerning relator’s disabilities, her health care providers, and her request to use her voucher close to her current providers.  Assistant director Jodi Hormann testified on behalf of respondent stating that relator is not eligible for portability under respondent’s administrative plan and was accordingly denied permission to port her voucher outside of respondent’s jurisdiction.

The hearing officer issued her written decision on January 14, 2004, upholding respondent’s decision to deny relator’s request to port, noting that Ms. Hormann had acted responsibly and in accordance with respondent’s administrative policy, as well as the regulations governing the federally funded housing choice voucher program.  Relator filed a petition for writ of certiorari on March 16, 2004. 


Relator argues that federal and state statutory law prohibiting discrimination against individuals with disabilities requires respondent to modify its portability rules to reasonably accommodate relator’s disability.  Specifically, relator contends that the hearing officer’s application of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (2000), the Fair Housing Amendments Act (FHAA), 42 U.S.C. § 3604(f)(1), (3) (2000), and the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.01 (Supp. 2003) to respondent’s administrative plan was erroneous as a matter of law. 

A quasi-judicial agency decision not subject to the Administrative Procedure Act is reviewed on writ of certiorari by inspecting the record to determine whether the decision was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.”  Rodne v. Comm’r of Human Servs., 547 N.W.2d 440, 444–45 (Minn. App. 1996) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (other quotations omitted)).

Statutory interpretation is a question of law subject to de novo review.  Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn. 2001).  Because the statutes prohibiting disability discrimination are neither highly technical nor subject to a longstanding agency interpretation, this court is not bound by the agency decision and need not defer to its expertise.  See, e.g., Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996) (suggesting that where a statute is technical in nature, an agency’s longstanding interpretation of the statutory language may be entitled to some interpretive weight).


            Relator contends that respondent violated the ADA’s prohibition on discrimination against individuals with disabilities by refusing to modify its portability rules.  Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. § 12132.  There is no dispute that respondent is a public entity subject to Title II of the ADA.  Accordingly, respondent “shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability,” unless respondent demonstrates that such modifications would fundamentally alter the nature of its programs.  28 C.F.R. § 35.130(b)(7) (2004). 

Congress intentionally chose not to provide a determinative list of actions that would constitute discrimination, and did not attempt to limit “discrimination” to conduct that was deliberate or programs that resulted in a disparate impact.  See Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 858–59 (10th Cir. 2003) (examining the purpose of the ADA as outlined in 42 U.S.C. § 12101(a) and the House Report preceding its adoption).  Rather, the anti-discrimination provisions of the ADA require that “an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.”  Alexander v. Choate, 469 U.S. 287, 301, 105 S. Ct. 712, 720 (1985) (emphasis added).[1]  A public entity cannot define the benefit in a way that “effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made.”  Id.

            In Choate, the Supreme Court held that Tennessee did not discriminate on the basis of an individual’s disability when it reduced from 20 to 14 the number of inpatient hospital days the state would provide reimbursement for under Medicaid without including a reasonable accommodation for patients with disabilities who disproportionately required more inpatient care than patients without disabilities.  Id. at 306, 105 S. Ct. at 722.  The Court determined that the 14-day period of reimbursed hospitalization was the relevant benefit and upheld the limitation because it was not the product of a discriminatory motive.  Id.  Moreover, the limitation “does not deny the handicapped access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide.”  Id. at 309, 105 S. Ct. at 724.  Every individual, regardless of disabilities, was subject to the reduced coverage, and every individual was left with identical hospital service at their access.  Id.

            Applying the same reasoning, respondent’s portability rules do not discriminate against relator on the basis of her disability.  For applicants outside of respondent’s jurisdiction, the relevant benefit respondent has elected to provide is a Section 8 housing voucher with the opportunity to port after 12 months.  Respondent subjects every individual to the same restriction on portability, and did not deny relator access to this benefit or exclude relator in any way from receiving this benefit.  Relator argues that respondent’s discriminatory conduct was the failure to modify the portability rules to accommodate respondent’s disability.  But, under Title II of the ADA, respondent is not required to provide reasonable accommodations unless there is some initial showing of discrimination by the public entity.  See 42 U.S.C. § 12132.  Because relator had meaningful access to respondent’s voucher program, respondent need not modify its universally applied limitation to accommodate relator’s disability.


Relator also argues that respondent violated the Fair Housing Amendments Act’s prohibition against housing discrimination on the basis of disability by refusing to modify its portability policy to reasonably accommodate her disability.  Under the FHAA, it is illegal “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of [that buyer or renter’s] handicap.”  42 U.S.C. § 3604(f)(1).  Unlike the ADA, the FHAA specifically defines discrimination to include “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.”  Id. § 3604(f)(3)(B).  Accordingly, this court has concluded that the FHAA requires a public entity to make reasonable accommodations to generally applicable laws when necessary to give an individual with a disability equal opportunity to use and enjoy a dwelling.  See Citizens for a Balanced City v. Plymouth Congregational Church, 672 N.W.2d 13, 21 (Minn. App. 2003) (upholding the city’s decision to modify a zoning ordinance to permit the construction of a supportive housing facility).[2] 

Relator has not demonstrated that she was discriminated against in the sale or rental of a dwelling under the FHAA, or that respondent’s refusal to modify its portability policy denied relator equal opportunity to use and enjoy a dwelling.  Respondent provides rental vouchers to landlords.  Respondent does not engage in the sale or rental of housing.  Additionally, relator has not demonstrated how respondent’s failure to make reasonable accommodations denied her access to a dwelling that a non-disabled applicant could access.  Relator has not identified any specific dwelling she wished to rent; she has only identified a geographic region in which she would like to apply her voucher.  As such, there is no indication that respondent’s portability policy discriminates against relator under the FHAA.

            Likewise, relator has not demonstrated how respondent’s portability rules, without modification, make housing unavailable or deny relator access to a dwelling because of her disability.  The federal appellate circuits acknowledge that the phrase “otherwise make unavailable or deny” contains a substantial degree of ambiguity and should, therefore, be construed to affect the statute’s broad remedial purpose.  See, e.g., Michigan Prot. and Advocacy Serv., Inc. v. Babin,18 F.3d 337, 344 (6th Cir. 1994); Hogar Agua y Vida v. Suarez-Medina, 36 F.3d 177, 181 (1st Cir. 1994).  But a sampling of federal appellate circuits also suggests a general consensus that the Congress’s intent in enacting the FHAA was to “reach property owners and their agents who directly affect the availability of housing for a disabled individual,” as well as actors who are “in a position directly to deny a member of a protected group housing rights.”  Babin, 18 F.3d at 344; see also Southend Neighborhood Improvement Ass’n v. County of St. Clair, 743 F.2d 1207, 1209–10 (7th Cir. 1984) (noting that courts have construed the phrase “otherwise make unavailable or deny” to encompass “mortgage ‘redlining’, insurance redlining, racial steering, exclusionary zoning decisions, and other actions by individuals or governmental units which directly affect the availability of housing”).

Similarly, this court has applied the FHAA to claims brought against a city that approved construction of supportive-living housing by modifying its zoning ordinance.  See Plymouth, 672 N.W.2d at 13.  In that case, the city was integrally involved in the procurement of additional housing for disabled individuals.  In contrast, respondent, in its capacity as an entity administering rental subsidy vouchers, is not a direct provider of housing and does not affect the availability of housing generally.  Accordingly, respondent did not violate the FHAA in denying relator’s request for a reasonable accommodation to respondent’s portability provision. 


[1] In Choate, the Supreme Court addressed a claim of disability discrimination under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (2000).  The Rehabilitation Act uses nearly identical language to that subsequently adopted by the ADA, and the provisions purport to impose the same requirements.  The only distinction is that plaintiffs under the Rehabilitation Act must bring claims against a public entity that receives federal funds.  See, e.g., Cercpac v. Health and Hosps. Corp., 147 F.3d 165, 167 (2d Cir. 1998) (applying the reasoning in Choate to an ADA claim).


[2]The MHRA uses nearly identical language to define a prohibited “unfair discriminatory practice” with respect to the sale or rental of real property.  See Minn. Stat. § 363A.10, subd. 1(2) (2003).  This court interprets the MHRA under the same analysis as the FHAA for purposes of this appeal.