[Congressional Record Volume 141, Number 193 (Wednesday, December 6, 1995)]
[Senate]
[Pages S18063-S18071]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     HOUSING FOR OLDER PERSONS ACT

  Mr. BROWN. Mr. President, I ask unanimous consent that the Senate 

[[Page S 18064]]
  now turn to consideration of Calendar No. 231, H.R. 660.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 660) to amend the Fair Housing Act to modify 
     the exemption from certain familial status discrimination 
     prohibitions granted to housing for older persons.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the 
bill, which had been reported from Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and inserting in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Housing for Older Persons 
     Act of 1995''.

     SEC. 2. DEFINITION OF HOUSING FOR OLDER PERSONS.

       Section 807(b)(2)(C) of the Fair Housing Act (42 U.S.C. 
     3607(b)(2)(C) is amended to read as follows:
       ``(C) intended and operated for occupancy by persons 55 
     years of age or older, and--
       ``(i) at least 80 percent of the occupied units are 
     occupied by at least one person who is 55 years of age or 
     older;
       ``(ii) the housing facility or community publishes and 
     adheres to policies and procedures that demonstrate the 
     intent required under this subparagraph; and
       ``(iii) the housing facility or community complies with 
     rules issued by the Secretary for verification of occupancy, 
     which shall--
       ``(I) provide for verification by reliable surveys and 
     affidavits; and
       ``(II) include examples of the types of policies and 
     procedures relevant to a determination of compliance with the 
     requirement of clause (ii). Such surveys and affidavits shall 
     be admissible in administrative and judicial proceedings for 
     the purposes of such verification.''.

     SEC. 3. GOOD FAITH ATTEMPT AT COMPLIANCE; DEFENSE AGAINST 
                   CIVIL MONEY DAMAGES.

       Section 807(b) of the Fair Housing Act (42 U.S.C. 3607(b)) 
     is amended by adding at the end the following new paragraph:
       ``(5)(A) A person shall not be held personally liable for 
     monetary damages for a violation of this title if such person 
     reasonably relied, in good faith, on the application of the 
     exemption under this subsection relating to housing for older 
     persons.
       ``(B) For the purposes of this paragraph, a person may only 
     show good faith reliance on the application of the exemption 
     by showing that--
       ``(i) such person has no actual knowledge that the facility 
     or community is not, or will not be, eligible for such 
     exemption; and
       ``(ii) the facility or community has stated formally, in 
     writing, that the facility or community complies with the 
     requirements for such exemption.''.

  Mr. BROWN. I further ask unanimous consent the bill be considered 
under the following limitation: 1 hour for debate on the bill to be 
equally divided between Senator Brown and Senator Biden, that no 
amendments be in order to the bill with the exception of one amendment, 
and that following the expiration or yielding back of debate time, the 
committee amendment be agreed to, the bill be read a third time, and 
the Senate proceed to a vote on passage of the bill with no intervening 
action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. BROWN. Mr. President, for clarification, I ought to note the 
amendment that is referenced is the committee amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Colorado.
  Mr. BROWN. Mr. President, the Civil Rights Act of 1968 was passed 
specifically to prohibit discrimination on the basis of race. Title 
VIII of the act was the Fair Housing Act. It prohibited discrimination 
on the basis of ``race, color, religion or national origin'' for any 
sale of housing, rental of housing, financing of housing, or provision 
of brokerage services.
  The housing practices in which discrimination is prohibited include 
the following: Sale or rental of a dwelling, provision of services or 
facilities in connection with a sale or rental of a dwelling, steering 
any person to or away from a dwelling, misrepresenting availability of 
dwellings, discriminatory advertisements, and charging different fees 
provided and different benefits.
  The 1974 Fair Housing Act, or title VIII of the Civil Rights Act, was 
amended to prohibit discrimination on the basis of sex. In 1988, the 
Fair Housing Act was amended again to prohibit discrimination on the 
basis of being handicapped or familial status, which means living with 
children under 18. That is, the 1988 Fair Housing Act prohibition of 
discrimination on the basis of living with children under 18 included 
an exemption ``for housing for older persons.'' In other words, H.R. 
660, which enables housing for older persons, is not a new idea. This 
debate is really about refining the original one.
  To meet the definition for housing for older persons under current 
law, the housing must be intended for occupancy by persons 55 years or 
older, where there are ``significant facilities and services'' designed 
to meet the physical or social needs of older persons.
  Interpreting and implementing the ``significant facilities and 
services'' standard has been very troublesome. In other words, it has 
been a pain in the neck because it has been vague, it has been 
difficult, it has spawned litigation and created confusion. For the 
last 7 years, it has been unclear what ``significant facilities and 
services'' means. There have been so many lawsuits that the exemption 
Congress intended is fast being revoked in fact.
  Mr. President, the way bureaucrats have administered this provision 
would make the people who came up with the Mississippi literacy test 
proud. It acts as a bar to the reasonable provisions of the law that 
were intended to make housing available for families with children 
while continuing to allow housing for older persons. The fact is, some 
older people do prefer not to have the noise and the trauma that go 
along with having children. Frankly, families with children sometimes 
prefer not to have the complaints about their activity as well.

  H.R. 660 is intended to clear up this problem. It is intended to make 
the law clear and workable, and to stabilize the original exemption 
Congress created for senior housing.
  In other words, what we are dealing with here is making the law 
clearer and more workable for seniors. This bill aims to protect 
seniors so that they can, if they wish to, move into housing where they 
are protected in their safety and their privacy.
  H.R. 660 will clarify the law and put in place a bright line test for 
senior housing. The test is: First, the housing is intended and 
operated for seniors; second, there is an actual 80 percent occupancy 
rate of the occupied units; third, the intent is manifested by 
published policies of the housing community; and fourth, the housing 
community complies with HUD rules. If that is met, then senior housing 
is safe from lawsuit.
  This revision, this clarification, passed in the House of 
Representatives 424 to 5. It was overwhelming. It is the least we can 
do to give senior citizens the help they both desire and merit. 
Frankly, this kind of abuse that senior citizens have been subject to 
from the bureaucracy with regulations ought to end. We ought to have 
rules that a reasonable person can understand and deal with. What we 
have been subjected to in the existing regulations that have come down 
is flatly an effort to thwart the will of Congress, not an effort to 
deal reasonably with the problem.
  The reality is, we would not have this bill before us today if we had 
not had some Federal regulators that had simply tried to thwart the 
original intent of Congress. We would not have this bill before us if 
the bureaucrats had simply tried to deal with this problem in a way 
that was less cumbersome and less difficult.
  I should point out that not only is this bill something that passed 
the House by 424 to 5, but reasonable efforts have been made in this 
Chamber to modify the bill to further obtain consensus. We have 
accepted suggestions made by Senator Simon and others which address 
their concerns. What comes out of committee and what is available for 
the Senate to consider, therefore, is a bill that I think Members will 
be comfortable in voting for and will feel they can report to their 
constituents: We have cleaned up the law, we have clarified the law, we 
have ended some unnecessary and unreasonable regulatory burdens and 
given a reasonable, clear definition to protect the interests of senior 
citizens.
  Mr. President, at this point I yield the floor and I suggest the 
absence of a quorum and ask unanimous consent that the time of the 
quorum call be charged equally to myself and the Senator from Delaware.
  The PRESIDING OFFICER. Without objection, it is so ordered. 
  
[[Page S 18065]]

  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Mr. President, I ask for the yeas and nays on H.R. 660.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. BROWN. Mr. President, I suggest the absence of a quorum and ask 
that the time under the quorum call be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Mr. President, the point of this bill is to deal with a 
problem in seniors housing communities that is created up by the 
ludicrous HUD regulations which this Congress directed but which had 
earlier been rejected and the new ones which I think strain the 
imagination.
  The problem that the seniors housing exemption could only be allowed 
for facilities that were designed for the very wealthy. So we have a 
circumstance where, if you followed the existing HUD regulations, the 
rich could enjoy the exemption but the normal seniors could not.
  Let me, for those Members who find that hard to believe--and I must 
say I find it hard to believe--mention some of the standards that HUD 
put forward in regulations that they suggested seniors must have in 
order to qualify for the exemption:
  T'ai chi classes, swim therapy, macrame classes, fashion shows, 
regularly offered CPR classes, and vacation house watch.
  How many normal seniors do you know who have a need for that?
  Pet therapy services.
  Are these things that you ought to have in a program to qualify for a 
normal exemption?
  Ping-pong, pool table, shuffleboard, horseshoe pits, golf courses.
  These are things the average senior would find extravagant.
  Lawyers' offices, lifeguards, swimming or water aerobic instructors, 
dance and exercise instructors, craft instructors.
  I mention these because they are in the HUD guidelines. I mention 
them also to make this point: HUD designed guidelines that, for the 
normal seniors in this country, became exorbitantly expensive, and it 
was part of an effort by HUD, I believe, to simply do away with the 
seniors exemption that would extend this housing privilege to normal 
seniors in this country.
  At this point, I yield 8 minutes of my time to the distinguished 
Senator from Arizona.
  Mr. KYL. I thank the Senator.
  Mr. President, I certainly have been privileged to work with the 
Senator from Colorado in supporting this very important piece of 
legislation and would like to reiterate at the very outset precisely 
what we do here and why. This bill, as the Senator from Colorado has 
noted, eliminates many of the problems that senior communities have 
experienced over the last decade, and I think everyone recognizes that 
my State of Arizona was really a pioneer in the creation of these 
senior communities. They know who they are, and they do not need the 
Department of Housing and Urban Development designing a set of criteria 
such that the Senator from Colorado has just provided us with to define 
them as a senior community.
  Believe me, if you go to Arizona and you are in one of these 
communities, you are fully aware that that is where you are. But under 
current law, these communities must follow these HUD guidelines or 
regulations in order to qualify for the exemption. The bill repeals 
this so-called significant facilities requirement, simplifying the 
process by which legitimate seniors-only facilities will gain the 
exemption.
  To obtain the exemption, the bill only requires that 80 percent of 
the households in a community have in residence at least one person 
over the age of 55. That is the requirement.
  If the community publicly states and can prove that 80 percent of its 
units have one or more occupants age 55 or older, then it would pass 
the adults-only housing test and qualify for an exemption from the Fair 
Housing Act's antifamily discrimination rule even if it lacked the 
significant facilities as defined by HUD.
  In addition, to reduce abusive litigation, the bill allows that 
realtors and developers may show good-faith reliance on the seniors-
only exemption if such person has no actual knowledge that the facility 
or community is not or will not be eligible for such an exemption, and 
the facility or community has stated formally in writing that the 
facility or community complies with the requirement for such exemption.
  Now, who supports this legislation? Fortunately, just about 
everybody. I have received literally hundreds of letters of support 
from seniors living in these communities. Many of the community 
coordinators have expressed support to us. Due to HUD's stringent 
``significant facilities'' regulations, it is the fact that a few of 
these communities have actually lost their seniors exemption.
  Constituents from Mesa, Tucson, Golden Valley, Green Valley, 
Scottsdale, Sun City, Yuma, Dreamland Villa Community, and Phoenix have 
all communicated with me. Groups like the Arizona Association of 
Manufactured Homeowners and their 25,000 homeowners, Adult Action of 
Arizona and their 42,000 homeowners, Fountain of the Sun Homeowners, 
Arizona Manufactured Housing Institute, Sun Lakes Homeowners, Yuma East 
Owners Association, Ellenburg Capital Corp., and Fountains Retirement 
Properties, these and others have contacted me in support of this.
  Real estate agents--the National Association of Realtors--and housing 
development firms all favor this bill. AARP has written a letter to the 
chairman of the committee, Senator Hatch.
  I ask unanimous consent that the letter of the AARP in support of 
this legislation be printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. KYL. Many of these constituents argue that the rule defining 
``significant facilities and services'' increases the costs to their 
housing and tells them how to live. And that is the objection I think 
in addition to the complexity of complying with these HUD regulations.
  These individuals have complained that some senior housing complexes 
are being hit with unfair discrimination lawsuits because of confusion 
about which housing qualifies for the exemption from the 
antidiscrimination housing statute.
  Why is this bill important?
  Although the ``significant facilities and services'' provision was 
well intended--it was designed to protect families with children from 
discrimination in housing, which we all support, of course--the 
exemption has made the lives of seniors unnecessarily difficult.
  Fewer regulations and restrictions would allow senior communities to 
operate more efficiently and freely. Is it too much to ask that the 
seniors of our country be allowed to live without intrusion into their 
lives by the Federal Government?

  Most senior citizens I know are independent and highly capable. They 
do not want to pay extra to have somebody read to them. They do not 
want or need to be told by the Federal Government how often they have 
to have bingo made available to them in their housing complex.
  By increasing the price of rent in senior facilities, these 
regulations in effect discriminate against low-income seniors, as the 
Senator from Colorado has pointed out.
  There is one other thing that I would like to say because there is an 
argument that the Housing and Urban Development Department recognized 
the problems with its regulations and therefore sought to relieve some 
of the burden by revising and imposing a new set of regulations.
  I almost did not use the word ``imposing,'' but that is what it is. 
And I think the point of this legislation is to 

[[Page S 18066]]
say, ``Nice try, but you still have not solved the problem.''
  This most recent rule of HUD revising the ``significant facilities 
and services'' regulation really does not answer the problem.
  One of my constituents, Susan Brenton, for the 25,000 Member Arizona 
Association of Manufactured Homeowners Group, stated, ``The new rule is 
still very nebulous and leaves a lot of areas open to court decisions 
and each court case costs the residents of the community thousands of 
dollars.''
  The new regulations state that communities that provide at least 2 
services each from 5 of 12 categories all defined by HUD qualify for 
the exemption. But these services are really quite frivolous, and they 
raise the costs to residents. This is what the Senator from Colorado 
was just quoting from, Mr. President.
  These so-called easier regulations are really at the end of the day 
not much of an improvement. HUD's attempt at revising its statistics 
have only trivialized what qualifies as a ``significant service.'' 
Clearly, HUD needs some help in fixing the problem that it fully 
acknowledges exists--regulatory overreach in senior housing--but we 
think the way to solve the problem is to eliminate the ``significant 
facilities and services'' requirement altogether, and that is what H.R. 
660 does.
  Mr. President, in conclusion, this legislation has received not only 
wide support from States like mine which have a lot of senior 
communities, but as you know, it has wide support around the country. 
It has significant support in the Senate. It passed out of our 
Judiciary Committee with virtual unanimity, and I am sure it will be 
adopted by this body in very short order, again, with virtual 
unanimity.
  What we will be saying to the senior communities of our country is 
that we heard you when you let us know that these regulations were too 
costly, too burdensome and really in a sense too frivolous, and 
therefore the Congress is not incapable of acting to correct a problem 
like this in order to make your lives a little easier. That is what we 
will have done when we pass this important legislation.
  Again, I commend my colleague from the State of Colorado for bringing 
the legislation forth and for getting it to the floor so that we can 
see this job through and get it done before the end of the year.
  I thank the Chair very much and reserve the remainder of whatever 
time I did not use.

                               Exhibit 1


                                                         AARP,

                                 Washington, DC, October 23, 1995.
     Hon. Orrin Hatch,
     Chairman, Committee on the Judiciary, Senate Dirksen Office 
         Building, Washington, DC.
       Dear Mr. Chairman: I am writing on behalf of the American 
     Association of Retired Persons (AARP) to express our 
     continuing support for the Housing for Older Persons Act of 
     1995 (H.R. 660) and to urge its immediate consideration and 
     passage.
       AARP believes that age-specific housing should be preserved 
     as an important service to many older persons. Congress 
     recognized at the time the Fair Housing Amendments Act was 
     passed that the standards established to meet the statute's 
     exemption for housing for older persons would have to be 
     clear, workable, and flexible enough to be applicable to the 
     wide array of housing, residents, and abilities to pay in the 
     elderly housing market. Unfortunately, promulgating and 
     enforcing clear and workable standards has proven to be 
     nearly impossible. Efforts to clarify the statute's 
     requirement of ``significant facilities and services'' have 
     been undertaken in three rulemakings under two 
     Administrations.
       While AARP applauds HUD's most recently issued rule--a 
     significant improvement over its proposed rule of July 1994--
     the Association has come to the conclusion that the complex 
     and seemingly contradictory statutory provisions defining 
     housing for older persons have made equitable enforcement 
     very difficult, if not impossible. Our Legal Counsel for the 
     Elderly office was unable to find any successful defense of a 
     claim of exemption for housing for older persons among cases 
     receiving judicial review. When coupled with significant 
     anecdotal evidence of rather arbitrary decisions by fair 
     housing investigators, the conclusion is inescapable that 
     implementation of the law has not been consistent with the 
     flexibility intended by Congress. Indeed, widespread 
     dissatisfaction with the statute's enforcement threatens the 
     very viability of the important new protections provided in 
     the Act.
       AARP appreciates the leadership of your Committee and the 
     work of Senators Gorton and Kyl in addressing this issue. If 
     we can be of any further assistance, please do not hesitate 
     to have your staff contact Don Redfoot of our Federal Affairs 
     staff at 434-3800.
           Sincerely,
                                                     Martin Corry,
                                        Director, Federal Affairs.

  Mr. BOND. Mr. President, I rise in support of H.R. 660, the Housing 
for Older Persons Act of 1995. This legislation recognizes that elderly 
housing is special housing for seniors, that the elderly are a special 
population that deserve to live in housing reserved for the elderly, 
and that this legislation does not constitute discrimination against 
families.
  HUD recently published regulations to clarify what constitutes 
elderly housing. HUD published these regulations because the Congress 
in the Housing and Community Development Act of 1992 required HUD to 
clarify what constitutes elderly housing. I remind my colleagues that 
HUD has failed for years to provide the proper guidance and leadership 
on what constitutes elderly housing, despite confusion and costly 
litigation over this issue. Moreover, the new HUD regulations remain 
sorely lacking. It is time that we provide clear guidance on what 
constitutes elderly housing and I urge my colleagues to support H.R. 
660.
  Mrs. FEINSTEIN. Mr. President, I rise today in support of H.R. 660, 
the Housing for Older Persons Act of 1995. The main thrust of this 
legislation is to remove the requirement for significant facilities at 
55-and-over communities.
  This has been a major issue in California, particularly in the Inland 
Empire area including Riverside and San Bernardino Counties, which have 
traditionally been retirement communities catering to all income levels 
of seniors--from low-income mobile home parks to lavishly planned, full 
service retirement communities. One only has to drive along Interstate 
10, from Los Angeles to Phoenix, to see the many billboards advertising 
these retirement communities.
  Previously, these 55-and-over communities have been known as adults 
only communities. However, during consideration of the Fair Housing 
Amendments of 1988, in an attempt to combat discrimination against 
families with children, adults only communities were called into 
question.
  In turn, Congress decided to preserve adults only communities, which 
previously housed seniors, with the new designation of ``55-and-over.'' 
One of the requirements for this designation was that communities must 
have ``significant facilities'' in order to qualify. The Department of 
Housing and Urban Development did not develop rules for ``significant 
facilities,'' however, until 1991. Unfortunately, these rules proved to 
be very controversial and resulted in several expensive law suits being 
brought by HUD against the very communities Congress had intended to 
protect.
  The most controversial point had to do with the definition and 
differing interpretations by the courts and HUD as to what constituted 
``significant facilities.'' Did it mean that there had to be a 24-hour, 
on-site medical facility, for example, or, could shuffleboard or other 
planned activities suffice?
  Last year, due partially to concerns expressed by my office, former 
Department of Housing and Urban Development Assistant Secretary for 
Fair Housing and Equal Opportunity Roberta Achtenberg conducted 
hearings around the country, including one in San Bernardino County. 
From what I understand, communities were pleased with the outcomes of 
the hearings, and eventually, HUD developed new rules which lessened 
the definition of ``significant facilities.''
  Still, cities have been anxious for Congress to adopt H.R. 660, to 
permanently eliminate the ``significant facilities'' requirement. Take 
for example, in my state of California, the city of Hemet.
  In the city of Hemet, 50 percent of its housing is 55-and-over 
communities. Removing the seniors-only status and requiring these 
communities to absorb families with children will result in a dramatic 
shortage of classroom space, and the tax-base. Demographics are such 
that the financing of new school construction, in a city that was 
planned as a retirement community, would not be possible.
  Adoption of H.R. 660 will preserve existing 55-and-over communities, 
and will clarify, once and for all, congressional intent with respect 
to protecting senior housing in retirement communities. 

[[Page S 18067]]

  Although discrimination against families with children should not be 
tolerated, when a community has been planned specifically as a 
retirement community, and at least 80 percent of its residences house 
senior citizens, as this bill requires, then I believe those 
communities should have a right to be preserved as senior housing.
  Mr. FAIRCLOTH. Mr. President, I strongly support H.R. 660. This 
legislation will eliminate many of the problems that senior communities 
have faced over the last several years, particularly from HUD's 
excessive rules interpreting the Fair Housing Act.
  Mr. President, unfortunately, this is not the only problem that 
arises from interpretations of the Fair Housing Act. In August of this 
year, I introduced legislation, S. 1132, to address two significant 
problems.
  First, S. 1132, would prevent HUD from investigating and even suing 
people who protest the establishment of group homes in their 
communities.
  S. 1132 would also overturn a recent Supreme Court ruling in City of 
Edmonds versus Oxford House, by allowing localities to zone limits on 
the number of unrelated persons living together if the zoning scheme is 
designed to preserve a single family neighborhood.
  In that case, a home for 10 to 12 recovering drug addicts and 
alcoholics was located in a single family neighborhood. The city tried 
to have the house removed because it violated the city's local zoning 
code that placed limits on the number of unrelated persons living 
together. The Supreme Court ruled that the Fair Housing Act was 
violated by this zoning law.
  I think the Supreme Court ruled incorrectly in this case. The 
Congress clearly intended an exemption from the Fair Housing Act 
regarding the number of unrelated occupants living together. My bill 
would clarify that localities can continue to zone certain areas as 
single family neighborhoods, by limiting the number of unrelated 
occupants living together. I think families should be able to live in 
neighborhoods without the threat that certain types of group homes--
which may be unsuitable for single family neighborhoods--can move in 
next door and receive the protection of the Fair Housing Act.
  But the most important point is this one: Decisions about zoning 
should be made at the local level and not in Washington. If a locality 
wants to permit group homes in a certain area--it can do so without HUD 
interfering in the decision using the Fair Housing Act as cover.
  Mr. President, my bill would also correct the abuses of the Fair 
Housing Act by the Clinton administration. In the past 2 years, HUD has 
taken to investigating people under the Fair Housing Act who have 
protested group homes coming into their neighborhoods. The most well 
known of these cases was the incident involving three residents in 
Berkeley, CA. HUD's actions were a blatant violation of their right to 
freedom of speech. HUD's abuse was so bad that they dropped the suit 
and promised they wouldn't do it again. HUD even issued new guidelines 
on the subject so it couldn't happen again.
  But, not long ago, HUD has done it again. HUD is investigating five 
Californians who went to court to get a restraining order against a 
group home for the developmentally disabled that was planned for their 
neighborhood.
  Mr. President, the issue is not whether the location for this group 
home is proper, that issue can be decided by the courts. The issue is 
freedom of speech. I believe anybody has the right to speak their mind 
and to take legal action against what they think is an injustice. HUD 
has taken the opposite view in this debate. I think this is wrong and 
needs to be clarified in law by amending the Fair Housing Act.
  Mr. President, I offer strong support for H.R. 660, but would hope 
that in the near future, the Senate would consider other changes to the 
Fair Housing Act, particularly those in S. 1132. I hope that we can 
make these reforms to the Fair Housing Act because we need to preserve 
this act to prevent real discrimination, but we do not need to use the 
act to pursue a far, far left agenda that defies common sense, and 
silences free speech.
  Mr. GORTON. Mr. President, today we passed a significant bill which 
will remove the burdensome bureaucracy of the Federal Housing and Urban 
Development Agency off the backs of American seniors. In this bill, 
which I originally introduced in the Senate during the 103d Congress, 
we take significant steps to provide fair, safe, and independent 
housing for Americans over the age of 55. I have received thousands of 
letters from concerned residents of ``55 and over'' communities in 
Washington.
  Today, law provides for people over the age of 62 to be provided with 
special housing arrangements. The qualifications for a senior housing 
development are simple: A community for persons age 62 and older is 
required to have all residents age 62 or older. In 1988, Congress also 
legislated that communities with citizens 55 or older would qualify as 
``housing for older persons,'' provided those communities met three 
requirements: 80 percent of the housing units must be occupied by at 
least one person age 55 or older; a community must show in its 
advertising, rules, regulations and leases that it intends to serve 
people over the age of 55; and the community must provide ``significant 
facilities and services'' to its residents.
  It's those words: ``Significant facilities and services'' which have 
proven to be so problematic. HUD tried to tell us what ``Significant 
facilities and services'' meant--it received over 15,000 comments, all 
expressing continued confusing and puzzlement over the Department's 
attempt at clarification. This is an area of law that is crying for 
legislative relief. I believe, as do my constituents, that the 
Department's rules go too far in mandating that all ``55 and over'' 
communities provide expensive facilities and services and make these 
services accessible to older persons. Clearly, Mr. President, privately 
owned and operated ``55 and over'' communities catering to low- and 
moderate-income seniors cannot be expected to have the same facilities 
and services as federally funded housing projects.
  Seniors of all incomes deserve protection. As noted in the Senate 
report to H.R. 660, ``poorly drafted regulations have discouraged or 
outright denied seniors housing.'' With the overwhelming passage of 
H.R. 660, the U.S. Senate has stopped this practice. The U.S. Senate 
took a stand on behalf of our seniors, and their right to fair, safe, 
and equitable housing.
  Mr. BROWN. Mr. President, let me repeat what is at issue.
  The way the HUD rules operate is that senior citizens are not allowed 
to have a community by themselves unless they had some facilities that 
were laid out by HUD, and they were things like access to swimming 
pools, accessible club house, private fishing pond, a hair salon, a 
golf course, lawyer's office, a vacation house watch, pet therapy 
services, tool loan services, regularly offered CPR classes, fashion 
shows, craft classes in making jewelry, a variety of classes including 
t'ai chi or swimming therapy.
  What they came up with in the HUD rules was a flat rule that said if 
you are not rich and cannot afford these extraordinary services, we are 
not going to let you live together.
  Mr. President, that is not right. Seniors in this country deserve an 
opportunity to have reasonable rules. That is what this bill does. It 
has reasonable regulations, and it is a reasonable guideline that 
repeals some very unreasonable regulations. It has the overwhelming 
support of seniors around this country, the overwhelming support of the 
House. And I strongly urge its adoption.
  Mr. President, we are now at a point where the proponents of the bill 
have used much of their time. I suggest the absence of a quorum and ask 
that the time that is consumed in the quorum call be equally divided, 
except that at least 5 minutes remain usable at the end of the debate 
for the proponents of the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BIDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, parliamentary inquiry. I wish to speak in 

[[Page S 18068]]
  opposition to this bill. Is there time for me to do that? And under 
whose control is the time?
  The PRESIDING OFFICER. The Senator controls 23 minutes in his own 
right.
  Mr. BIDEN. I thank the Chair very much.
  Mr. President, this bill, in my view, retreats from the commitment we 
made to families with children. In 1988, Congress said that America's 
housing providers should not be able to discriminate against families 
with children. We did this in the face of widespread evidence that such 
discrimination against families with children existed.
  We spent a lot of time on this floor--and I participated and have for 
the years I have been here--talking about discrimination against 
minorities, talking about discrimination against the elderly, talking 
about all forms of discrimination, as we should, as we should. But in 
my view, we spent precious little time on this floor talking about what 
is a mounting form of discrimination, discrimination against children, 
because some people find them inconvenient, inconvenient to be around.
  In 1988, Congress said that America's housing providers should not be 
able to discriminate against children as well as against blacks or 
Hispanics or people based on their religion or based on their gender. 
We took this action because we wanted to prohibit all-adult housing 
communities just as we had prohibited all-white housing communities in 
1968 with the passage of the Fair Housing Act in the first place.

  Even as we said no discriminating against families, we also carved 
out an exception for legitimate retirement communities which catered to 
the special needs--not just desires, needs--and requirements of the 
elderly. The distinction we made then, and which I stand by now, is 
this: You cannot just keep children out because you do not like them, 
you cannot just keep children out because you do not want tricycles 
around, you cannot just keep children out and families with children 
out because it is inconvenient and you do not like it.
  If you are going to exclude children, we said, you must be an 
organized community providing ``significant facilities and services'' 
designed to meet the physical and social needs of the elderly. Or put 
another way, a lot of old folks like me--I am 53 now--get together and 
say, ``We're tired of having kids around and we're going to have this 
gated community that X percent of us are over the age of 50, and we can 
prevent someone from moving in who has kids.''
  Well, I tell you what, I think that--and by the way, there was ample 
evidence in the hearings we held then that that is just what was being 
done. What we were not concerned about is a community for the elderly 
with special needs where they needed ramps, where they needed special 
dining facilities, where there was some type of extended care, where it 
was in fact designed for elderly persons who in fact physically needed 
this special circumstance or emotionally needed this special 
circumstance, but not just because all of a sudden we have become 
trendy and decided that kids are kind of in the way.
  If we are going to exclude children, we said, you have to be an 
organized community providing significant facilities and services. This 
``significant facilities and service'' requirement was put into law 
for, as I have said, a very good reason, put there to distinguish 
between true senior communities and those that just think children are 
a pain in the neck. We recognized that something other than an animus 
against children must set these communities apart in order to meet an 
exemption from the Fair Housing Act.
  I understand that what constitutes significant facilities and 
services has been a matter of a great deal of controversy and 
uncertainty over the years, and I have not been satisfied, because I 
have not believed that we set down stringent enough requirements to 
exclude--exclude--families with children.
  Heck, there are communities who let dogs in, let people have dogs, 
but will not let people have children. And so, significant facilities 
and services, as I indicated, have been a matter of much controversy.
  Also understand, the Department of Housing and Urban Development has 
taken many different stabs at the definition which has led to confusion 
and has made it difficult for those trying to comply with the law.
  Mr. President, none of that, in my view, should lead us to abandon 
the basic principle: If you are going to be able to discriminate 
against families, you should be special, you should be serving the 
special needs of seniors. This principle should remain our guidepost 
more now than ever, especially since the Department of Housing and 
Urban Development has just recently promulgated completely revised 
regulations which resolve the confusion and make it much easier and 
clearer for senior housing communities to take advantage of the 
exemption.
  The Department, many now agree, has finally gotten it right. Under 
the new regulations, which went into effect September 18 of this year, 
a housing facility can self-certify. It is amazing, we do not let many 
other folks self-certify that it falls under the Fair Housing Act 
exemption by simply filling out a straightforward, easy-to-understand 
checklist of facilities and services designed for older folks, which, I 
add, I do think is too lenient, not too strong. My staff does not like 
me to say that, but that is what I think. I think it should be more 
stringent, if you are a senior community meeting the exemption.
  But the checklist contains a menu of some 114 facilities and services 
in 11 categories. If a facility provides a mere 10 of them, like 
wheelchair accessibility, communal recreation facilities, periodic 
vision or hearing tests or fellowship meetings, it qualifies as a 
senior housing project and may exclude families with children.
  I want to make it clear to seniors who are not happy with me about 
this, I do not even think that is stringent enough, but at least it 
attempts to make the distinction.
  If a facility's status is challenged, it need only show that the 
certification was accurate at the time of the alleged violation. The 
list of facilities and services included in the new rule was drawn from 
amenities actually provided by a wide cross-section of senior housing 
developments across the country, large and small, affluent and less 
well off, manufactured housing communities, condominiums and single-
family communities.

  In testimony before Senator Brown's subcommittee, a representative 
from the Department of Housing and Urban Development testified to the 
extreme flexibility and cost consciousness built into the new 
guidelines. Here is what he said, and I quote:

       The rule does not assume that people living in housing for 
     older persons are frail, disabled or require nursing home 
     care. It does not require congregate dining or on-site 
     medical care. The facility and services may be provided on or 
     off the premises of the housing.

  Let me add, I think it should require those things. But they may be 
provided by staff, volunteers, including residents and neighbors, or by 
third parties, such as civic groups or existing organizations in the 
community.
  The new regulation does not require lavish services, nor do the 
mandated facilities, affordable only by the well-heeled; rather, they 
simply embody what is already being offered by bona fide senior 
communities of all sorts across the map. If a facility is providing at 
least 10 of the 114 facilities or services on the list, it qualifies 
for an exemption, a self-designated exemption.
  The bill's supporters say the bill will make it easier and surer for 
a housing community to determine whether it qualifies for a fair 
housing exemption, and they are absolutely right about that. It makes 
it a lot easier. They do not have to be a senior facility. They can 
just not like kids. They can just not like kids around.
  What kind of message are we sending to families with children, most 
of whom are breaking their necks just making it? What are we saying? We 
want to make it easier for you to have a rationale to keep me out of 
that community with my 14-year-old daughter?
  I think it is outrageous--I acknowledge, I am the only one who seems 
upset about this; no one else is here to speak against it, that I am 
aware of--unless they want to make it even easier and just say it is 
not in vogue to have kids: ``If you have kids, go off and 

[[Page S 18069]]
live by yourself.'' The other folks should go off and live by 
themselves, and if the kids want to follow, so be it. Think about it 
for a minute.
  Let us say that a complex contains 100 units; that all of these are 
occupied by two people; and that 80 percent are occupied by at least 
one person over the age of 55. In this hypothetical community, it will 
be able to lawfully discriminate against families with children under 
this bill if as few as 80 residents of the 200 of them are over the age 
of 55, while 120 could be under the age of 55, and we could put up a 
sign: ``No children allowed.''

  They probably all call themselves great Americans, too, by the way. 
They all talk about how they care about families, and they may even go 
visit their grandchildren and pat them on the head on their birthdays 
and Christmas. What does that say, if you can build a community where 
80 out of 200 people living in the community are over 55 and you can 
say ``no kids''? If we want population control, this may be one of the 
indirect ways of going at it.
  To my mind, the math just does not add up to fairness for families 
and children. I believe this bill will open the door to the very kind 
of discrimination we sought to outlaw in 1988, and I think it will make 
it just too easy for folks to hang a sign on the door that just says, 
``No children allowed.''
  I cannot support this bill. I urge my colleagues not to support this 
bill. I realize that I am going to hear an awful lot from senior 
citizens about their rights. I do not think there is anybody on this 
floor who votes to protect the rights of seniors any more than I do, 
but no senior, unless they have a physical or emotional problem and 
need, has a right to tell a kid they cannot live next door. It is just 
too darn bad, and we are allowing it here.
  I might add--well, I will not add anything else, because I will just 
get myself in trouble if I keep thinking about it and keep talking 
about it. I do not think this is the right thing to do.
  I am sure to most, because we are so busy, this is just a 
clarification of an existing piece of legislation. That is how it is 
advertised. I respect my colleague from Colorado. He is joined in 
support for this by many of the strongest allies in the area of civil 
rights, many of the colleagues on this floor, my colleagues who I tried 
rally a little bit about this. They seem to think I am kind of off. One 
of them even said, ``Biden, that's because you come from a big Catholic 
family, you keep talking about the size of families.''
  I do not like people who discriminate against kids. Period. I think 
it is well-intended what is being done here, but I want to tell you, if 
you are 55 years old, ambulatory, still working, have no problem, live 
at home, have a wife or have a husband, you are hanging around the 
house, and you are fine and you do not have any special needs, you 
should not be able to say a kid cannot move next door to you. Period. 
Period.

  I just think this is wrong. I think it is dead wrong. But I am going 
to lose. I just want to make sure when my children and grandchildren 
read this, they will know their old man and their grandfather meant 
what he said.
  The only important thing--the only important thing--in this whole 
outfit is kids. That is the only important thing. All the rest is 
insignificant. And when we allow people to say, ``No kids here,'' it is 
like we say, ``No dogs here,'' it is like we say, ``No blacks here.'' 
That is just wrong, unless there is a real good and compelling reason 
for it. The fact you are over 55 and 80 out of 200 people in a 
community over 55, that ``ain't'' good enough for me.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Abraham). Who yields time?
  Mr. BROWN. Mr. President, I yield myself 2 minutes. I want to pay 
tribute to my very thoughtful colleague from Delaware. His comments are 
heartfelt, and I know he is very sincere. I know his concerns come from 
a genuine interest in seeing that the irrationality of discrimination 
does not pervade our society, and that we evaluate and work with each 
other on the basis of reasonableness, thoughtfulness and caring. I want 
to pay tribute to him because I have a great deal of respect for him 
and what brings him to his position.
  I am persuaded that this is a good bill for a couple of reasons. One, 
I believe seniors, who have reached that stage in life where they need 
to be in a safe, supportive environment, should be allowed that 
opportunity. That is what the bill does.
  Second, Mr. President, I am persuaded that the guidelines that HUD 
came up with are simply an attempt to make it impossible to make this 
exemption for seniors housing work, not reasonable attempts at 
regulation. After two administrations, three attempts at regulations, 
four Congresses, specific Federal legislation directing HUD to fix 
this, countless lawsuits, numerous hearings and policy decisions, a 
record number of constituent letters to agencies, the fact is that we 
ought to act and make it possible for seniors to have units by 
themselves, if they wish it.
  Mr. President, let me make two observations. One, nobody who wants to 
be around kids, by this measure, is precluded from being around kids. 
It does not do that. It also ought to be noted, Mr. President, that 
when you have senior housing and seniors sell their home and move into 
the senior housing, it makes available additional units to families who 
have children. We ought to ask ourselves: where did the senior who 
moves into a seniors community come from? Certainly they are vacating 
other housing. So the process of senior housing is one that adds units 
for family units, not subtracts from it.
  Last, Mr. President, I think any objective observer would look at the 
guidelines that have come out from HUD and understand they have simply 
not served the American people. To suggest that to have senior housing 
units, you have to have to have access to swimming pools or hair 
salons, or access to a clubhouse, or life guards, or exercise 
instructors, or crafts instructors, or golf courses, or a lawyer's 
office, or polka and ballroom dancing instructors, or fashion shows, is 
simply to recognize what they have done with these regulations. They 
have said that you have to be rich to qualify for senior housing.
  Mr. President, the reality is this: The majority of Americans who 
retire do not have a lot of extra money and a lot of them cannot afford 
these things. What we have done is come up with HUD regulations that 
are reserved for the very rich, and that is silly and wrong, and it 
ought to be corrected. This bill does that. This bill is about 
expanding freedom, about giving seniors choices. I think it is a wise 
measure. It is why the House passed it by such an overwhelming margin.
  A concern that has been raised about H.R. 660 is whether it requires 
a seniors community to be intended for 100 percent occupancy by people 
over the age of 55. Section 807 (b)(2)(C) states that the housing is 
``intended and operated for occupancy by persons 55 years of age or 
older.'' The congressional intent of this provision is simply that the 
main purpose behind creating the community is to provide housing for 
older persons. Any suggestion that this requires the community to 
intend that 100 percent of the units be occupied by those 55 and older 
is a grave misconception. the true meaning behind this general 
statement is evident in the bill's language, the legislative history, 
the subcommittee report, and current Federal regulations.
  This legislation will not require all units in a seniors community to 
be intended for use by persons over the age of 55. The bill language 
makes it obvious exactly when counting occupancy is critical. The 
bright-line standard it creates clears up any confusion in determining 
what constitutes seniors housing: At least 80 percent of the occupied 
units are occupied by at least 1 person who is 55 years of age or 
older--not 100 percent and not total units--80 percent of occupied 
units.
  But the general purpose of the community, as outlined by the section 
in question, is to provide housing for older persons--and the 
definition of what constitutes housing for older persons is that 80 
percent of the occupied units are occupied by persons 55 years of age 
and older.
  The language of the bill is clear on this point, and so is the 
legislative history. In 1988, Congress extended the Fair Housing Act to 
prohibit discrimination in housing against families with children. At 
the same time, however, Congress provided for the exemption of three 
different types of seniors housing, including the one we are examining 
today; that is, housing ``intended or operated for occupancy by at 
least one 

[[Page S 18070]]
person 55 years of age or older per unit.''
  The fact that H.R. 660 does not require 100 percent occupancy for 
housing of persons 55 and older becomes even more evident when one 
compares this category of seniors housing with another one of the three 
original exemptions. The second category is ``housing intended for, and 
solely occupied by, persons 62 years of age or older.'' Note the 
striking difference, besides age, between these two categories: The one 
we are concerned with today no where states that housing is to be 
solely occupied by persons 55 years of age and older. Yet if this was 
the congressional intent, certainly it would have been delineated in 
1988 when the three categories were first introduced.
  The subcommittee report also promotes this interpretation. In the 
section-by-section analysis, the provision in question is interpreted 
so that ``the housing provider can demonstrate its intent to providing 
housing for persons 55 years or older, even if it allows persons under 
age 55 to continue to occupy dwelling units or move into the housing 
facility and occupy dwelling units, as long as the housing facility 
maintains the 80 percent occupancy threshold.''
  The congressional intent voiced throughout the legislative history 
and subcommittee report is to make it easier for seniors communities to 
qualify as housing for older persons, thereby making seniors housing, 
particularly lower income seniors housing, more affordable. Requiring 
100 percent of the units in a community, occupied or not, to be 
intended only for persons age 55 and older does not accomplish this 
goal--in fact, it makes qualifying as seniors housing more burdensome 
and would further restrict the availability of affordable seniors 
housing.
  What Congress does intend is to create a 20-percent buffer zone for 
seniors communities so that they can more easily qualify, and remain 
qualified, as housing for older persons. It is easy to predict several 
situations that could arise making this buffer zone a necessary and 
vital protection for seniors housing.
  Suppose an elderly woman owns a condominium in a seniors housing 
community. When this woman passes away, she wants to leave the home to 
her middle-aged son. Inheritance and transfer of property are 
an everyday occurrence in our democratic society, and the 20-percent 
buffer zone outlined in H.R. 660 would accommodate such a bequest.

  Or consider the widow of a senior citizen who has passed away. If the 
surviving spouse is younger than 62 or 55, then, without H.R. 660, they 
face not losing a loved one, but also having to move out of their own 
home. This is not the role of the Federal Government. H.R. 660 corrects 
this.
  The possible scenarios that affect seniors housing go even further--
to potentially threatening the very existence of seniors communities. 
If a seniors apartment complex has 100 rooms available but can only 
find enough interested seniors to occupy 90 of them, this bill would 
permit the remaining 10 rooms to be occupied by families or other 
people under age 55. Forcing the communities to leave these 10 
apartments vacant because seniors were not available could threaten the 
economic viability of running a seniors community. H.R. 660 protects 
seniors from that risk.
  Current Federal regulations also support the fact that housing 
``intended and operated for occupancy by persons age 55 and older'' 
does not mean 100 percent occupancy is required. Current regulations 
require similar intent as what is proposed in H.R. 660. In regard to 
housing for persons 55 and over, it states that the owner or manager of 
a seniors community must ``publish and adhere to policies and 
procedures which demonstrate an intent to provide housing for persons 
55 years of age or older.'' Not at any time has HUD interpreted this to 
mean 100 percent occupancy by seniors. This is a general statement 
requiring that the main purpose behind the housing facility is to 
provide housing for seniors. No specific or numerical requirements are 
prescribed, just that the goal of their venture is to make seniors 
housing available.
  A specific, numerical requirement is prescribed in this bill, but you 
won't find it before the bright-line test in section 807(b)(2)(C)(i). 
This bright-line standard is the force of H.R. 660, replacing the 
ambiguous ``significant facilities and services'' requirement that 
currently exists. But nothing else in this language prescribes any 
occupancy requirements beyond the bright-line standard of 80 percent 
actual occupancy.
  Nothing in the legislative history, congressional intent, current 
CFR's, or language of this bill requires seniors communities to have 
the intent to occupy 100 percent of their housing units with persons 55 
years of age and older. There is a well-thought and intentional 20 
percent buffer zone to protect seniors communities and ensure they are 
effective, not unduly burdened, and able to provide the best services 
to our most valued citizens at the most affordable cost. The bright-
line standard and everything surrounding this bill make that clear. Do 
not be misguided by inaccurate and hasty fears. H.R. 660 does not 
require the intention of 100 percent occupancy, but rather the clear, 
understandable condition that to be considered housing for older 
persons, 80 percent of the occupied units must be occupied by persons 
age 55 and older.
  Mr. President, I believe this completes all the arguments. I ask 
unanimous consent that all time be yielded back.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER. If there be no further amendment to be 
proposed, the question is on agreeing to the committee amendment in the 
nature of a substitute.
  The committee amendment was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment of the 
committee amendment and third reading of the bill.
  The amendment was ordered to be engrossed, and the bill to read the 
third time.
  The bill was read the third time.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall the bill pass?
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. I announce that the Senator from North Carolina [Mr. 
Faircloth] is necessarily absent.
  Mr. FORD. I announce that the Senator from New Jersey [Mr. Bradley] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 94, nays 3, as follows:

                      [Rollcall Vote No. 590 Leg.]

                                YEAS--94

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bennett
     Bingaman
     Bond
     Boxer
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Lautenberg
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Nunn
     Pell
     Pressler
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wellstone

                                NAYS--3

     Biden
     Chafee
     Leahy

                             NOT VOTING--2

     Bradley
     Faircloth
       
  So the bill (H.R. 660), as amended, was passed.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote, and I move 
to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SMITH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll. 
  
[[Page S 18071]]

  Mr. SMITH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________