Board of Directors of Cameron Grove Condominium, II v. State Commission on Human Relations

BATTAGLIA, J. This judicial review action under Section 32(h) of Article 49B of the Maryland Annotated Code (1957, 1998 RepLVol.), 1 involves the interpretation of Section 22 of Article 49B of the Maryland Annotated Code 2 as to the proper apportionment of the burden of proving the cost of a disability accommodation under a reasonableness standard. Arguing in administrative proceedings before the Maryland Commission on Human Relations (Commission), 3 Peggy Daniel and Albert Doby, dis ⁶⁴ abled residents of Cameron Grove Condominium II, a condominium located in a retirement community for people 55 years of age and older in Prince George’s County, pursued their complaints that the Board of Directors of Cameron Grove II (Cameron Grove) and their property management company, H & E Management, Ltd., 4 had discriminated against them by refusing to grant a reasonable accommodation for their disabilities. Specifically, Ms. Daniel and Mr. Doby alleged that Cameron Grove refused to provide keys to the side and back doors to their building to permit them to more fully use and enjoy their dwellings. Ms. Daniel and Mr. Doby filed complaints with the Commission in 2006, alleging that Cameron Grove had refused to accommodate their disabilities. 5 After the Commission reviewed the complaints and certified that there was probable cause to believe that Cameron Grove had discriminated against the complainants, the case was assigned to an administrative law judge from the Office of Administrative Hearings (OAH). 6 The administrative law judge ruled that Ms. Daniel and Mr. Doby had not proven that giving them keys to the side and back doors was necessary and reasonable.

An Appeal Board of the Commission (Appeal Board or Board), however, disagreed and issued a final decision in which the Board determined that Cameron Grove was required to prove that giving Ms. Daniel and Mr. Doby keys was an unreasonable financial burden and that Cameron Grove had failed to ⁶⁵ establish that giving the complainants keys presented “an undue burden” or necessitated “substantial or impracticable changes.” On judicial review, 7 a circuit court judge disagreed with the Board’s determination and remanded the matter to the Appeal Board to reconsider the issues in light of his burden allocation, which was that Ms. Daniel and Mr. Doby should have been required to prove reasonableness. The Court of Special Appeals vacated, before the Board acted on the decision of the circuit court judge. Cameron Grove then petitioned this Court for certiorari, which we granted, 427 Md. 605 , 50 A.3d 605 (2012), to consider the following questions: 1. Whether the Agency erred by requiring that the Petitioner show evidence that thieves and vandals had gained illegal entry to the building before it could prohibit keys from being distributed to doors which were not secure? 2.

Whether the Agency erred by failing to perform the balancing test required by the Maryland reasonable accommodation statute? 3. Whether the Agency erred by ignoring the Planning Board’s Specific Design Plan, which required that a security system be installed on the doors in question? We shall hold that Cameron Grove was required to prove that providing keys to Ms. Daniel and Mr. Doby was unreasonable in light of the costs attendant in doing so, that the Appeal Board properly performed the requisite balancing test when it concluded that Cameron Grove unreasonably denied Ms. Daniel’s and Mr. Doby’s requests to be given keys to the side and back doors of their building, and that there is substantial evidence to support the Board’s conclusion. Central to our discussion is the fact that, under Section 22(a)(9), it is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped ⁶⁶ individual equal opportunity to use and enjoy a dwelling.” The accommodation in issue was providing keys to the side and back doors of the condominium building in which Mr. Doby and Ms. Daniel lived, as an accommodation necessary to allow them to access the facilities, including a Resort Center that offered various activities, and to carry out their daily activities, such as bringing in groceries: 8 Complainants Doby and Daniel moved into Cameron Grove II in 2004 and 2001 respectively.

Complainants are disabled. Due to not having keys (and therefore no access) to doors close to their units (side/back doors), Complainants in their disabilities encountered difficulties in gaining access to their homes and in traversing to and from the community in carrying out daily activities. They were forced to travel greater distance than they otherwise would have with keys to the side/back doors. As their disabilities were painful and greatly limited physical mobility, they were limited in carrying out daily activities requiring traversing the community.

They began requesting keys verbally from [Cameron Grove] shortly after moving in. In 2006, they submitted written requests with physician statements affirming that the requested keys would help them in their disabilities. Cameron Grove denied their requests, asserting that giving Mr. Doby and Ms. Daniel keys would be a safety hazard, that the doors themselves were heavy and dangerous for the residents to use and that installing passcard systems and ⁶⁷ safety doors at the requested locations would cost almost $19,000: [Cameron Grove] denied their requests based on security and cost concerns. Several acts of vandalism had occurred on the property. [Cameron Grove] maintained that as any key could be duplicated, provision of a key to two residents would undermine its legitimate interest in ensuring the safety of its residents.

Additionally, [Cameron Grove] argued that as the side/back doors had no windows and were very heavy, allowing free ingress and egress presented a safety hazard as persons could inadvertently push the doors into each other causing injury. It also maintained that installing a security and pass code system to allow for access to the side/back doors cost approximately $18,900.00 according to estimates it obtained. With respect to the ruling of the administrative law judge that the complaints should have been dismissed, the Board determined that the administrative law judge erred: Turning to what the ALJ termed as “THE MERITS” portion of her decision, this Board holds that the ALJ erred in finding that the Appellees’ “denial of Complainants’ requests for keys to the side and loading dock doors did not constitute a refusal to make reasonable accommodations in the rules, policies, practices, or services necessary to afford the Complainants equal opportunity to use and enjoy their dwellings in violation of subsection (9) of [sjection 22(a) of Article 49B.” The Appeal Board considered two issues on appeal: (1) Whether the ALJ erred in concluding that Appellees’ refusal of the Appellants’ request for keys to the side/back doors of their condominium building did not violate Article 49B of the Annotated Code of Maryland. (2) Whether the Statement of Charges is moot because Respondent has now provided the keys originally requested by Complainants to all residents of Cameron Grove II.

The Board began its discussion of the issues by setting forth the elements of proving whether an accommodation was im ⁶⁸ properly refused, noting that, under the Federal Fair Housing Act, Sections 3600 et. seq. of Title 42 of the United States Code (2006), 9 an accommodation is required to be made “if the accommodation is (1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing.” The Board utilized the framework articulated by the United States Court of Appeals for the Fourth Circuit in Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597 (4th Cir.1997) and concluded that “furnishing the keys did not present undue financial burdens or requirements of substantial or impracticable changes” and was, therefore, a reasonable accommodation. The Appeal Board dismissed Cameron Grove’s argument that granting the accommodation was too costly: A. The ALJ Incorrectly Concluded that the Accommodation Was Not Reasonable In Bryant Woods Inn, Inc. v. Howard County, MD, 124 F.3[d] 597 (4th Cir.1997) the Court enunciated a two-part test for determining whether an accommodation for disabled persons was required. The court stated that the FHA requires an accommodation for persons with handicaps if the accommodation is (1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing. Bryant Woods at 603.

Providing the keys was a reasonable accommodation because furnishing the keys did not present undue financial burdens or requirements of substantial or impracticable changes. The Board noted that Cameron Grove’s assertion that granting Mr. Doby’s and Ms. Daniel’s requests would require the installation of a security system, at a cost of almost $19,000, was not sufficient to show that the requested accom ⁶⁹ modation was unreasonable. Cameron Grove had argued that the Specific Design Plan, created when the Cameron Grove Condominium Complex was contemplated, required that all entrances and exits be equipped with security systems. 10 The Board determined, however, the security and passcard systems were not requests made by the complainants; rather, Ms. Daniel and Mr. Doby had requested only keys to the side and back doors, the cost of which would have been insubstantial: As to [Cameron GroveJ’s contention that furnishing keys would have been too costly given their budget, the Complainants requested their own keys, not installation of a security and pass code (for all residents, non-disabled included) system requiring thousands of dollars. On the contrary, providing the keys was feasible and practical under the circumstances. [Cameron Grove] had considered a bid totaling $18,900 to install a pass card and/or security system at the side/back doors.

Installation of a security system with pass card issuance for all residents is not what the Complainants had requested. The Complainants in their disabilities simply needed their own keys to the side/ back doors to assist their mobility. It was error for [Cameron Grove] to refuse to relax its “no key” policy for issuance of keys to the Complainants. The costs to [Cameron Grove] of providing the Complainants with their own keys was negligible as [Cameron Grove’s] President in her testimony revealed that she did already in fact have keys to the side/back doors.

Additionally, recently all residents have been provided keys at no additional cost to the side/ back doors. The Appeal Board also found three errors made by the administrative law judge. The Board noted that security concerns the administrative law judge found significant — the ⁷⁰ heaviness of the side and back doors and the increased vulnerability of the building to security breaches by virtue of increased access — -were not so substantial as to render the accommodation unreasonable. The Board explained that the concerns about the safety of the doors could have been met by posting signs or issuing warnings and that, since the doors were now in use by all residents by virtue of the passcard system that was installed, those concerns had been met.

The Board also found that the concern that Cameron Grove would have been more vulnerable to security breaches by issuing additional keys was not supported by the evidence, stating that there was no connection between giving out keys and vandalism that had been cited as a concern, and that there was no evidence that previous security breaches had been caused by nonresidents. Finally, the Board found that the administrative law judge’s conclusion that, because the accommodation would provide only minimal relief to Mr. Doby and Ms. Daniel, the complainants had failed to show that the requested accommodation was reasonable, was not supported by the evidence. In that regard, the Board stated, “even where the link between the need for an accommodation and the ameliorative effects it would provide is weak, a defendant needs to show that the request is unreasonable in light of a facially neutral and legitimate policy,” citing Bronk v. Ineichen, 54 F.3d 425 (7th Cir.1995): The ALJ accepted as valid [Cameron GroveJ’s argument that the key request was unreasonable because the side and back Goading dock) doors were not sufficiently equipped to serve as exits/entrances. [Cameron Grove] argued that as the doors had no windows and were very heavy, allowing them to be used for exiting and entering would create a safety hazard: that the person using the door might inadvertently injure someone on the other side due to lack of visibility and the weight of the doors. This concern could have been addressed by posting warning signs to direct persons to use caution when opening the doors.

Additionally, the Complainants, not all residents, due to the extenuating needs which their disabilities presented, were the ones ⁷¹ who would have been using the doors. Therefore, there should not have been any concern about regular flow of traffic of persons entering and exiting through those doors. Finally, as [Cameron Grove] has since furnished keys to the doors in question, [Cameron Grove] presumably found ways to adequately meet those safety concerns. The ALJ concluded that [Cameron Grove]’s position— that furnishing keys to Daniel and Doby would make Condo II “even more vulnerable to breaches in its safety from individuals who are not residents” — was correct.

This conclusion is not supported by the evidence of record. The vandalism of the cars involved no entry to Condo II. There is no evidence that these and the other above cited incidents were not perpetrated by residents or guests of residents. Additionally, even if non-residents had committed the acts, there was no evidence that they had obtained entry to Condo II by the side/back doors.

There was no connection between Daniel and Doby having keys and any unauthorized entry. Further, any misuse of the keys could have been guarded against by imposition of penalties and warning signs to residents placed on the doors in question. The ALJ found that any amelioration of the Complainants’ disabilities provided by the key accommodation was minimal. Her conclusion is not supported by the evidence.

As the Commission points out, the court in Bronk v. Ineichen, 54 F.3d 425 (1995) found that even where the link between the need for an accommodation and the ameliorative effects it would provide is weak, a defendant needs to show that the request is unreasonable in light of a facially neutral and legitimate policy. [Cameron Grove] failed to show that providing Complainants with a key was unreasonable as other condos routinely furnished keys, and the purpose of the “no key” policy (safety concerns) of [Cameron Grove] could have been achieved by less restrictive means such as placing safety warnings on the doors and imposing penalties on individuals who misused the keys. Finally, [Cameron Grove] did not present any alternative ⁷² that would have afforded Appellants the accommodation that keys would have. After determining that the accommodation was also necessary 11 and that issues were not rendered moot by the installation of a security door after the commencement of the case, the Appeal Board ordered Cameron Grove to pay $25,000 to Ms. Daniel and $10,000 to Mr. Doby for their pain and suffering, as well as a $5,000 civil penalty. The Appeal Board further ordered that neither Mr. Doby nor Ms. Daniel could be assessed any costs of paying the damage awards or penalty: ORDER Having reviewed the entire record of proceedings in this matter, and having considered and decided all of the issues raised on this appeal, it is the 24th day of September 2009, by a Board of Appeals of the Maryland Commission on Human Relations it is hereby ORDERED, that the Administrative Law Judge’s Proposed Decision dated October 3, 2008, be reversed for the reasons set forth herein, and it is further ORDERED, [Cameron Grove] pay the amount of $25,000.00 to Complainant Peggy A. Daniel and $10,000.00 to Complainant Albert C. Doby as actual damages, in addition to interest at the legal rate, to be paid, from the date of this Order, pursuant to the Courts and Judicial Proceedings Article; and it is further ⁷³ ORDERED, [Cameron Grove] pay the amount of $5,000.00 in civil penalty to the General Fund of the State of Maryland.

ORDERED, the Complainants are to be exempted from any assessment that [Cameron Grove] may implement to satisfy the fines and awards entered herein. After Cameron Grove petitioned for judicial review of the Board’s decision, a judge in the Circuit Court for Prince George’s County ruled that the Appeal Board had committed various errors of law, but more specifically to the present action, that the Appeal Board improperly had shifted the burden of proof to Cameron Grove to prove the unreasonableness of the requested accommodation and failed to articulate its consideration of the Specific Design Plan when balancing the safety concerns against the accommodations being sought: [M]uch of the decision of the Commission is supported by substantial evidence, however, there are some deficiencies in that decision which will require a remand to the Commission on Human Relations. Specifically, number one, the fines. I find that the Commission, while it’s justified in doing what it does and is justified and can do what they want to do, they need to articulate as to the fines.

They need to specifically, pursuant to COMAR ... in a civil financial penalty, they shall consider the seriousness of the violation, the good faith of the violation, later, the harmful effect of the violation on the public or harmful effect of the violator’s actions on the investigatory process of the Commission on Human Relations and, fourth, which is the most important thing that I find is a deficiency, the assets of the violator. So I have to remand it for that purpose alone for that determination. However, there are other reasons to remand it. I do find that there was an error of law that they need to specifically address.

They may find the same thing, but they need to address it in a way in which they show that they have not allocated the burden of proof to [Cameron Grove]. That is, they have to show and have to tell a consideration of the allocation of the burden of proof, a balancing test, more specifically, in their determination as to protect the safety of ⁷⁴ the entire community, that is the entire community of Cameron Grove. They have to address does the actions of giving these two individuals keys undermine the legitimate safety concerns of the community as to Cameron Grove. Furthermore, I find it as an error of law that they did not consider ... or give some consideration to the Planning Board’s specific design plan in this situation, SDP-9802.

Specifically, they can find, if they so desire, that the Board of Cameron Grove ... was negligent for failing to adhere to and follow the specific design plan, because had they followed the specific design plan in the beginning, we would not be here. But they have to balance that, they have to look at that, and they decided not to do so, and I believe that they have to do that in their consideration. The Commission appealed, and the Court of Special Appeals vacated the judgment of the Circuit Court, agreeing with the determination of the Appeal Board that Cameron Grove had unlawfully discriminated against Ms. Daniel and Mr. Doby. Cameron Grove asks us to determine which party, the complaining or the defending, should be required to prove that a requested accommodation is reasonable under Section 22(a)(9), which states that it is unlawful to “[rjefuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling.” Neither the language of Section 22(a)(9) nor its legislative history give guidance as to who must prove whether a requested accommodation is reasonable.

In determining the appropriate burden allocation, it is, however, appropriate to review federal cases interpreting the Federal Fair Housing Act, Section 3600 et. seq. of Title 42 of the United States Code (2006), which contains language nearly identical to that in Section 22(a)(9): ⁷⁵ Section 22(a)(9): It is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling.” Section 3604(f)(3)(B): Unlawful discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling.” In interpreting what constitutes reasonable accommodations in a disability context, federal courts that have addressed the issue are divided with respect to the issue of which party must prove reasonableness. The Second, Third, Seventh, Eighth, Ninth, and Tenth Circuits have interpreted disability statutes to require the defending party to prove that a requested accommodation is not reasonable, while the Fourth, Fifth and Sixth Circuits require the complaining party to prove that an accommodation is reasonable. In this regard, the Court of Appeals for the Fourth Circuit, in Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir.1997) required the complaining party to prove reasonableness. In that case, the Fourth Circuit was called upon to decide whether a zoning variance that had been denied should have been granted to accommodate a greater number of disabled residents in a group home in Howard County under the Federal Fair Housing Act.

Bryant Woods Inn, desirous of expanding its group home for disabled individuals from eight residents to fifteen, needed a variance from Howard County to do so. After being denied such a variance, Bryant Woods Inn sued Howard County under the Federal Fair Housing Act, claiming the County had failed to make a reasonable accommodation to assist them with providing housing options to those with disabilities. In affirming the denial, the Fourth Circuit held that Bryant Woods Inn had failed to prove that the accommodation was necessary and reasonable and was explicit that it was the complaining party that had to establish reasonableness: The [Fair Housing Act] thus requires an accommodation for persons with handicaps if the accommodation is (1) reason ⁷⁶ able and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing. Because the [Fair Housing ActJ’s text evidences no intent to alter normal burdens, the plaintiff bears the burden of proving each of these three elements by a preponderance of the evidence.

Id. at 603-04 (internal citation omitted). The United States Court of Appeals for the Fifth Circuit also concluded that it is the complaining party that must prove reasonableness. Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175 (5th Cir.1996). In Elderhaven, the Fifth