[Senate Report 104-172]
[From the U.S. Government Publishing Office]
Calendar No. 231
104th Congress Report
SENATE
1st Session 104-172
_______________________________________________________________________
HOUSING FOR OLDER PERSONS ACT OF 1995
_______
November 9, 1995.--Ordered to be printed
_______________________________________________________________________
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany H.R. 660]
The Committee on the Judiciary, to which was referred the
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, having
considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Purpose..........................................................2
II. Legislative history..............................................2
III. Section-by-section analysis......................................3
IV. Discussion.......................................................5
V. Subcommittee action..............................................6
VI. Committee action.................................................7
VII. Regulatory impact statement......................................7
VIII.Cost estimate....................................................7
IX. Additional views of Senator Kyl..................................9
X. Additional views of Senators Simon, Kennedy, and Feingold.......12
XI. Minority views of Senator Biden.................................15
XII. Changes in existing law.........................................18
The amendment is as follows:
Strike all after the enacting clause and insert 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.''
I. Purpose
The purpose of H.R. 660 is to eliminate the burden of the
``significant facilities and services'' requirement in the
seniors housing exemption of the Fair Housing Act. This
legislation is needed to provide a clear, bright-line standard
of when a seniors housing community is in fact ``housing for
older persons'' for purposes of the Fair Housing Act. H.R. 660
is intended to clear up this problem and return to the original
intent of the Fair Housing Act exemption Congress created for
seniors housing in 1988. H.R. 660 is designed to make it easier
for a housing community of older persons to determine whether
they qualify for the fair Housing Act exemption.
II. Legislative History
The Civil Rights Act of 1968 was passed to prohibit
discrimination on the basis of race. Title VIII of the act was
called 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 for which discrimination is
prohibited include the following:
Sale or rental of dwelling;
Provision of services or facilities in connection
with sale or rental of a dwelling;
Steering any person to or away from a dwelling;
Misrepresenting availability of dwelling;
Discriminatory advertisements; and,
Charging different fees or providing different
benefits.
In 1974, the Fair Housing Act was amended to prohibit
discrimination on the basis of sex. In 1988, the Fair Housing
Act was amended again, and changes thereto included a
prohibition against discrimination on the basis of handicap and
on the basis of ``familial status,'' which means living with
children under the age of 18. At the same time Congress
extended the Fair Housing Act to prohibit discrimination
against families with children, it added (at 42 U.S.C. 3607(b))
an exemption for three categories of housing for older persons.
Such housing included State and Federal programs specifically
designed and operated to assist elderly persons (42 U.S.C.
3606(b)(2)(A)) and housing intended for, and solely occupied
by, persons 62 years of age or older. Id. at 3607(b)(2)(B).
The third category of exemption was for housing ``intended
or operated for occupancy by at least one person 55 years of
age or older per unit.'' The Secretary of HUD was directed to
develop regulations for determining whether housing qualified
for the exemption, including as one of the factors ``the
existence of significant facilities and services specifically
designed to met the physical or social needs of older persons.
* * * '' Id. at 3607(b)(2)(C)(i).
Interpreting and implementing the ``significant facilities
and services'' standard has been very troublesome. For the last
7 years, it has been unclear what the phrase ``significant
facilities and services'' means. The Department of Housing and
Urban Development (HUD) regulations have not been sufficiently
clear or helpful. There have been so many lawsuits that the
exemption Congress intended is now being revoked as a practical
matter by threat of litigation.
In 1992, Congress set out to solve the problem with
``significant facilities and services'' by passing the Housing
and Community Development Act of 1992 which required HUD to
issue a revised rule defining the phrase ``significant
facilities and services.'' Two years later, in 1994, HUD
finally issued proposed rules to define the phrase. A few
months later, in response to overwhelming disapproval, HUD
withdrew the proposed regulations.
In 1995, the House of Representatives passed H.R. 660, the
Housing for Older Persons Act of 1995, by a margin of 424 to 5.
III. Section-by-Section Analysis
Section 1
This section sets forth the short title for the
legislation, the ``Housing for Older Persons Act of 1995.''
Section 2
This section amends subparagraph (C) of section 807(b)(2)
of the Fair Housing Act (42 U.S.C. 3607(b)(2)). This section
deletes the ``significant facilities and services'' requirement
for housing for older persons. The major inquiry that H.R. 660
requires in order to determine whether a facility or community
qualifies for housing for older persons is whether, in fact,
the community is comprised of eligible individuals. 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.
Subsection (C) retains the exemption for housing that is
``intended and operated for occupancy by persons 55 years of
age or older,'' but does not require a showing of the existence
of ``significant facilities and services.'' Subsection (C)(i)
creates a bright-line test that 80 percent of the occupied
units must be occupied by at least one person 55 years of age
or older. Subsection (C)(ii) requires the housing facility or
community to publish and adhere to ``policies and procedures''
demonstrating the intent to provide housing for occupancy of at
least 80 percent of the occupied units by at least one person
55 years of age or older per unit. This subsection specifically
states that such policies and procedures need not be set forth
in the governing documents of such facility or community.
Subsection (C)(iii) requires the housing facility or
community to comply with rules made by the Secretary of HUD for
the verification of occupancy. The rules issued by the
Secretary must allow for verification by reliable surveys and
affidavits and ``shall include examples of the types of
policies and procedures relevant to a determination of
compliance with the requirement of clause (ii).'' In addition,
this section specifically allows such surveys and affidavits to
be admissible in administrative and judicial proceedings for
the purposes of such verification.
Section 3
This section creates a defense against the imposition of
money damages for compliance where a person has relied in good
faith on the application of the exemption relating to housing
for older persons. A person who wishes to establish the good-
faith reliance under this subsection has to make a showing of
no actual knowledge that the facility or community is not
eligible for the exemption and the facility or community has
certified to such person, in writing, that it complies with the
requirements for such exemption. Such a writing need not be
notarized or otherwise witnessed, but it must contain indicia
of authenticity, such as being on stationary with the
letterhead of the facility or its operator and signed by an
individual identified as a responsible officer, employee,
agent, of the facility or its operator.
This section allows an individual to raise a defense which
will prevent the imposition of money damages where he or she
relies, in good faith, on the existence of an exemption for
``housing for older persons'' and it is later found that the
exemption did not apply. This section will preclude an award of
money damages, but does not shield a person from injunctive
relief.
This exemption is necessary because the housing for older
persons exemption contemplates a fact-intensive showing that
the community meets the age and occupancy requirements. It is
not practical to expect someone who inherited a home or other
housing unit from their parents to conduct this inquiry.
Similarly, real estate agents should not have to perform a
census of a housing community every time they list a home or
other housing unit. Nevertheless, if, after inquiring of the
community manager, a person seeking this good-faith reliance
has ``actual knowledge'' that the facility or community is not
eligible for the exemption, the good-faith exemption does not
apply.
IV. Discussion
H.R. 660 removes the troublesome ``significant facilities
and services'' requirement from the definition of ``Housing for
Older Persons'' and replaces it with a simple four-part test.
The ``significant facilities and services'' requirement has
been a disaster since the housing for older persons exemption
was passed as an exception to the general rule prohibiting
discrimination against families with children in 1988. Nobody,
including the Government, can figure out what the phrase
``significant facilities and services'' means. Further, the
requirement discriminates against low-income senior citizens.
As a result, seniors housing, particularly low-income seniors
housing, is faced with the uncertainty and unfairness of a
confusing Government policy, the threat of litigation and the
resulting limitation on the availability of affordable housing
for older persons.
In 1992, Congress recognized this problem and passed a law
instructing HUD to reissue the regulations for ``significant
facilities and services.'' Even with direction from Congress,
HUD failed to establish what the phrase ``significant
facilities and services'' means and the regulations were
withdrawn in response to widespread disapproval. New
regulations are now available, but they will not solve the
problem either. There will be inherent ambiguity in enforcing
any regulation under this exemption. Requiring ``significant
facilities and services'' operates to discriminate against
lower-income seniors. They cannot afford the lavish services
contemplated by HUD and others.
As Mr. Bill Williams, president of the Federation of Mobile
Home Owners of Florida, Inc., stated in his testimony before
the subcommittee, ``this issue is not about discrimination
against families.'' We all oppose that. But Congress recognized
in 1988, and we recognize in 1995, that seniors should be
allowed to live in safe, quiet communities congenial to them.
Most importantly, they should be able to do so regardless of
their income. As Mr. Williams said, the problem is ``finding
adequate affordable housing for all seniors.'' As long as
``significant facilities and services'' is a part of the law,
only well-to-do seniors will be able to enjoy safe seniors
communities.
According to Mr. Williams, HUD had received 20,000
complaints by October 1992. Of the 20,000 complaints, 17,0000
were closed that year resulting in over $7 million in
penalties. Mr. Jensen, the CEO of Jensen's Residential
Communities, stated in his testimony that ``[if] a complaint
were to be filed, I would have to decide whether or not to
conciliate or to go to court to defend my exemption. Both are
costly options.'' To make matters worse, according to Mr.
Jensen, ``[t]here is no definitive source for me to go to as a
businessperson to determine my compliance. * * * I cannot find
guidelines to comply with the facilities and services
requirements.''
H.R. 660 clears up these problems and establishes a bright-
line rule for housing for older persons. This is more fair to
both older persons and families with children since it makes
the law understandable.
H.R. 660 has three sections: section 1 is the title;
section 2 removes the significant facilities and services test
and replaces it with the simple, fact-based definition of
housing for older persons; section 3 includes a good-faith
reliance provision.
The new definition of Housing for Older Persons is a four-
part test: (a) intended and operated for older persons, (b) of
the occupied units, 80 percent are actually occupied by at
least one person 55 years of age or older, (c) the community
has policies and procedures that demonstrate the intent, (d)
the community complies with HUD rules.
In addition, the bill provides a good-faith defense if (1)
there is no actual knowledge that the community is not eligible
as housing for older persons, and (2) the facility or community
has stated formally, in writing, that the facility or community
complies with the requirements for such exemption.
This is a confused area of law that demands a legislative
solution. Low-income seniors deserve the same protection as
wealthy seniors. The original act is intended to allow this
exemption, but litigation, confusion, and poorly drafted
regulations have discouraged or outright denied seniors
housing. H.R. 660 had bipartisan support in the house and in
the subcommittee and it has been changed to reflect bipartisan
discussions. We need to preserve housing for older persons.
This bill offers that protection by creating a bright-line test
for housing for older persons without provoking litigation.
V. Subcommittee Action
The Senate Subcommittee on Constitution, Federalism, and
Property Rights of the Committee on the Judiciary held a
hearing on H.R. 660 and the issue of housing for older persons.
The hearing was held on Tuesday, August 1, 1995, at 9 a.m.
Testimony was taken from Senator Jon Kyl; Stuart Ishimaru,
counsel to the Assistant Attorney General on Civil Rights; Bill
Williams, president of the Federation of Mobile Home Owners of
Florida; Kristian Jensen, CEO of Jensen's Residential
Communities; James Morales, staff attorney, National Center for
Youth Law; and Lori Van Arsdale, council member, city of Hemet,
California.
The Senate Subcommittee on Constitution, Federalism, and
Property Rights of the Committee on the Judiciary, with a
quorum present, met on Wednesday, August 2, 1995, at 10 a.m.,
to mark up H.R. 660. Senators Brown, Hatch, Kyl, DeWine, and
Simon were present.
One amendment was offered by Senator Simon and adopted by
voice vote. The amendment clarified the requirement that at
least 80 percent of the occupied units in a senior citizens'
community are occupied by at least one person 55 years of age
or older. This reflects the intent of H.R. 660 as introduced.
H.R. 660 as introduced referred to ``intended and operated''
for the occupancy of at least 80 percent by older persons. This
reference to ``intended'' suggested that the 80-percent
requirement might be interpreted to be less than 80 percent. To
remove that ambiguity, language suggested by Senator Simon was
adopted to make the 80-percent occupancy of occupied units a
bright-line standard.
Senator Simon also offered, then withdrew, an amendment
which would have stricken the good-faith defense section.
The subcommittee then passed H.R. 660, as amended, by voice
vote. All Senators present voted in favor of the measure.
VI. Committee Action
The Senate Committee on the Judiciary, with a quorum
present, met on Thursday, October 26, 1995, at 9 a.m., to mark
up H.R. 660, as reported by the Subcommittee on Constitution,
Federalism, and Property Rights.
Senator Hatch brought up for consideration H.R. 660 as it
passed the House.
Senator Kyl, on behalf of himself and Senator Brown,
offered a substitute amendment. The substitute amendment
included the change to section 2 that was agreed to in
subcommittee as well as a change to section 3. The change to
section 2, which was agreed to in subcommittee, clarified that
80 percent of the occupied units must be occupied by at least
one person 55 years of age or older. The change to section 3
narrowed the good-faith reliance section. As amended, a person
may only show good-faith reliance under this section by meeting
the standard set out in section 3(B). That is, the person must
show no actual knowledge and that the community has stated, in
writing, that the community complies with the exemption for
housing for older persons. The substitute amendment was
accepted by unanimous consent.
The Committee on the Judiciary then passed H.R. 660, as
amended by the substitute amendment, by unanimous consent.
VII. Regulatory Impact Statement
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the Committee, after due consideration,
concludes that House Resolution 660 will not have direct
regulatory impact.
VIII. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 2, 1995.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 660, the Housing for Older Persons Act of 1995,
as ordered reported by the Senate Committee on the Judiciary on
October 26, 1995. CBO estimates that enacting H.R. 660 would
result in no significant cost to the federal government or to
state and local governments. Because enacting H.R. 660 would
not affect direct spending or receipts, pay-as-you-go
procedures would not apply to this legislation.
Under the Fair Housing Act, it is unlawful to discriminate
based on family status in the sale or rental of a dwelling.
However, current law affords an exemption for ``housing for
older persons'' (age-restricted communities), generally defined
as housing that includes significant facilities and services
specifically designed to meet the physical or social needs of
older persons. H.R. 660 would define this exemption to apply to
housing where at least 80 percent of the units are occupied by
at least one person 55 years of age or older. In addition, the
act would exempt persons who acted in good faith from liability
for monetary damages in suits stemming from the seniors-only
provision.
The intent of H.R. 660 is to clarify the meaning of
``housing for older persons.'' This issue has been a source of
housing discrimination lawsuits for a number of years,
involving both the Department of Justice (DOJ) and the
Department of Housing and Urban Development (HUD). It is
possible that the legislation could lead to a reduction in the
number of these lawsuits and thus lower the caseload of DOJ and
HUD. Based on information from these agencies, however, we do
not expect that enacting H.R. 660 would have a significant
effect on the costs incurred by DOJ or HUD.
On March 27, 1995, CBO provided a cost estimate for H.R.
660 as ordered reported by the House Committee on the Judiciary
on March 22, 1995. This version of the bill is nearly identical
to the House version, and CBO's estimate of costs is unchanged
from the previous estimate.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
June E. O'Neill, Director.
IX. ADDITIONAL VIEWS OF SENATOR KYL
H.R. 660 will eliminate many of the problems that senior
communities have experienced over the last decade. The Fair
Housing Act of 1988 was designed to protect families with
children from discrimination in housing. H.R. 660 repeals HUD's
``significant facilities'' requirement, which is the primary
test senior communities have to meet to qualify for an
exemption from the 1988 anti-discrimination statute. Only
developments designed to house the elderly as evaluated and
approved by the Department of Housing and Urban Development
(HUD) are exempt from that statute.
Many of my constituents argue that the federally imposed
definition of ``significant facilities'' and services increases
the cost of their housing and tells them how to live. They say
that some senior housing complexes are being hit with unfair
discrimination lawsuits because of confusion about which
housing qualifies for the exemption from the anti-family
discrimination statute.
David S. Schless, executive director of the American
Seniors Housing Association, stated that HUD's rules for
significant facilities and services would ``have a devastating
effect on keeping a community's costs down, particularly in the
mobile home communities.''
Apart from the larger question of whether the government
should be in the business of regulating individuals freedom of
association in the first place, surely this government can get
along quite well without imposing what the investigative
scholar James Bovard calls ``federal bingo mandates for senior
citizens.''
Only developments designed to house the elderly are exempt
from the anti-discrimination statute. Although the statute was
well-intended, it 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 from the federal government?
Most senior citizens I know are independent and highly
capable. They don't want to pay extra to have someone read to
them. They don't want or need to be told by the federal
government how to live.
Not only has it been difficult to comply with the
regulations, it has been impossible for senior communities to
regain their exemption once it is lifted. According to an
April, 1995 article in the Orlando Sentinel, ``lawyers could
not find a single instance in which a senior community was able
to defend successfully against a challenge to its exempt status
* * * [t]his was not supposed to be an impossible test but to
sort out the facilities that were really for older persons from
those that merely wanted to exclude children.''
Some argue that with the reining in of the federal
government's control, health and safety regulations could be
compromised. There is, I believe, a consensus that some of the
government's regulatory burden--estimated to cost the U.S.
economy more than a half-trillion dollars a year--ought to be
prudently and carefully retracted where possible. We tried to
accomplish that goal with regulatory reform. A good place to
renew these efforts would be HUD's published regulations for
senior citizen housing. Even Clinton administration officials
have changed their position, relaxing the interpretation to
allow plenty of room for communities to meet the facilities and
services standards.
Some put forward the objection that this bill discriminates
against families. H.R. 660 does not discriminate against any
party. It does not change how families are treated under the
Fair Housing Act. The exemption already exists for senior
communities. H.R. 660 eliminates the regulatory ambiguity and
makes it easier to determine which communities qualify for the
anti-discrimination exemption.
If the argument is about discrimination, then HUD's
regulations are a perfect example of discrimination--against
seniors. These regulations increase the price of rent in senior
facilities and, therefore, effectively discriminate against
low-income seniors. It's hard to explain the federal
government's aggressive prosecution of the owners of senior
citizen mobile home parks for alleged violations of the Fair
Housing Act. Surely, we have better things to do than
criminalizing trivial senior housing violations. But that is
precisely how HUD has applied the Fair Housing Act. It's
difficult to make a case that senior housing is such a national
problem.
HUD's latest argument is that H.R. 660 is unnecessary due
to HUD's recent revision of its rule regarding significant
facilities and services. This is not true. Susan Brenton and
the 25,000 members of Arizona Association Manufactured Home
Owners say that 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 a community thousands of
dollars).''
The new HUD regulations state that communities that provide
at least two services each from five of 12 categories--all
defined by HUD--qualify for the exemption. The HUD-approved
services include: bingo clubs, bowling trips, tai-chi classes,
seminars on how to get more government benefits, and pet
therapy for residents' animals. Some improvement.
To be sure, wealthier senior communities can probably live
with these new regulations. But the lower-income communities
will have a difficult time adding any extra cost. Why should
anyone be forced to play bingo, and pay for it? I would like to
insert into the record a letter Chairman Hatch received from
AARP outlining the urgent need to pass H.R. 660, the Housing
for Older Persons Act of 1995.
Even the wealthier senior communities will be affected in
the long run. Many development companies have expressed
reluctance to build senior communities because they believe the
regulations hinder demand for these communities.
The House of Representatives passed the bill by an
overwhelming vote of 424 to 5 earlier this year. The Senate
should do the same.
American Association of Retired Persons,
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.
Jon Kyl.
X. ADDITIONAL VIEWS OF SENATORS SIMON, KENNEDY, AND FEINGOLD
In 1988, Congress included familial status as a protected
class under the Fair Housing Act because of evidence that
housing discrimination against families was pervasive and often
affected minority families disproportionately. According to the
legislative history of the 1988 Act, the housing for older
persons exemption was included in the Act to accommodate some
seniors's desire to live in retirement communities. Two kinds
of exemptions were created: first, a bright line, age-based
exemption for retirement communities in which all residents are
62 years of age or older; and second, a conditional exemption
for retirement communities that provide significant facilities
and services designed to meet the physical and social needs of
older residents.
This bill amends the Fair Housing Act to expand the ability
of seniors communities to exclude families with children. It
does this, in part, by eliminating the requirement that
communities seeking the older persons housing exemption must
provide ``significant facilities services'' for the elderly and
creating a good faith defense for defendants in lawsuits
challenging the exclusion of families with children.
We agreed to these changes to the 1988 Act because many in
the seniors community, particularly those with lower incomes,
who expressed concerns that the interpretation of the
significant facilities and services requirements unduly
burdened their ability to create and live in legitimate
retirement communities. Nonetheless, we must express our
reservations about the possible unintended effects of these
changes.
significant facilities and services
Section 919 of the Housing and Community Development Act of
1992 required the Secretary of the Department of Housing and
Urban Development (HUD) to issue rules defining the scope of
``significant facilities and services designed to meet the
physical or social needs of older persons.'' Congress called
for these regulations in order to provide much-needed clarity
to determinations of whether a facility qualifies for this
exemption. On July 7, 1994, HUD issued its first proposed rule
to implement section 919. After commentators expressed concern
that the rule did not provide the needed clarity, HUD withdrew
it. On March 14, 1995, HUD issued a second proposed rule which
addressed the legitimate concerns and criticisms raised about
the first proposed rule. HUD reports that the vast majority of
commentators praised the March 14 proposed rule and urged its
adoption without additional changes. In the background
discussion of the final rule as published in the Federal
Register, HUD notes that sixty-one percent of the total
comments received on the March 14 proposed rule consisted of a
form letter which read is part:
I support the newly proposed rule on Significant
Facilities and Services for Housing for Older Persons
under the Fair Housing Act. I believe the needs of
seniors in senor housing are fairly reflected and
supported in the flexibility of the new amendments. The
new regulations are simple, clear and realistic. I
appreciate HUD staff's willingness to travel across the
country and listen compassionately to testimony. Thank
you for responding positively to the valid concerns of
seniors and community leaders expressed in the
hearings.
On August 18, 1995, during the pendency of H.R. 660 before
this committee, HUD issued its final regulations interpreting
the significant facilities and services provisions. The final
rule, effective September 18, 1995, includes few changes from
the March 14 proposed rule. The final rule creates a broad
checklist of potential facilities and services a seniors
community may provide in order to qualify for the exemption and
allows communities to self-certify that they qualify for the
exemption. We believe that the regulation could finally provide
the clarity and certainty that has been absent in the
interpretation and enforcement of the significant facilities
provision.
We note with concern that the elimination of the
significant facilities and services provisions of the 1988 Act
subverts the justification for allowing certain seniors
communities to discriminate against families with children.
That is, that the exception is necessary in order to facilitate
senior's ability to live in environments that are, in the words
of the House Judiciary Committee report on the 1988 Act
discussing the need for the exception, ``tailored to their
specific needs.'' In other words, the requirement was intended
to ensure that housing communities claiming this exemption were
indeed legitimate retirement communities designed to meet the
specific needs of senior citizens not just communities of
seniors united by their preference to not live around children.
By eliminating such a requirement, this bill may have the
unintended effect of increasing discrimination against families
with children.
As a result, we believe oversight of the effects of this
bill, if enacted, is critical. We have not agreed to this
change to our nation's civil rights laws to merely accommodate
the desire of some seniors to live only amongst older persons
if the price is the promotion of discrimination and the
decrease of decent, affordable housing for families with
children. We agreed to the changes so that legitimate
retirement communities, whether rich or poor, could qualify for
the exemption. If there is evidence that the effect of this
legislation is to rebuild the environment that led to the
inclusion of familial status in the coverage of the Fair
Housing Act in the first place, we believe that reinstatement
of the significant facilities and services requirements will be
warranted.
GOOD FAITH EXCEPTION
The good faith defense established by this bill would
shield individuals accused of familial status housing
discrimination from personal liability for monetary damages if
they reasonably relied, in good faith, on a belief that the
housing community was a seniors community permitted to
discriminate against families with children. As with the other
provisions of this bill, we believe that oversight of the
effects of the codification of this defense is critical to
ensure that it does not have the unintended effect of allowing
willful lawbreakers to escape the payment of monetary damages
as otherwise authorized under the law. Toward that end, we
believe that the defense should be available only to those who
can show both that he or she did not know that the facility did
not qualify for an exemption and that he or she actually relied
on a formal statement, in writing as described in this
committee report. We believe that establishing such a reliance
must include a showing that the individual, at a minimum,
actually saw the facility's formal statement of compliance.
Paul Simon.
Edward M. Kennedy.
Russell D. Feingold.
XI. Minority Views of Senator Biden
The bill is a retreat from a commitment we made to families
with children.\1\
\1\ I regret that I was unable to attend the committee's markup of
the legislation on October 26, 1995. I therefore was not part of the
quorum which reported the bill out of committee.
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In 1988, Congress extended the protections of the Fair
Housing Act to cover familial status. In the face of widespread
evidence of discrimination against families, and a countrywide
proliferation of ``all adult'' housing, we said--94 to 3--that
enough was enough. America's housing providers shouldn't be
able to arbitrarily hang a ``No Kids Allowed'' sign on their
doors.
At the same time that we passed the new law, we also carved
out an exception for legitimate retirement communities which
catered to the special needs and requirements of the elderly.
The distinction that we made then--and which I stand by now--is
this: you can't just keep kids away because you don't like
them, or because you don't want them around. If you're going to
exclude children, you must be an organized community providing
``significant facilities and services'' designed to meet the
physical and social needs of the elderly.
This requirement for significant facilities and services
was included to distinguish senior lifestyle communities from
run-in-the-mill housing complexes. We recognized that
something--something other than an animus against children--
must set these communities apart in order to merit an exemption
from the Fair Housing Act.
I understand that what constitutes ``significant facilities
and services'' has been a matter of much controversy and
uncertainty over the years. And I also understand that the
Department of Housing and Urban Development has made several
different attempts to craft a definition--which has led to
confusion, and has made it difficult for those trying to comply
with the law.
But none of that, in my view, should lead us to abandon the
basic principle: if you're going to be able to discriminate
against families, you should be special--and you should be
serving the special needs of seniors.
This principle should remain our guidepost now more than
ever--especially since HUD 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. HUD, many now agree, has
gotten it right.
Under the new regulations, which went into effect on
September 18 of this year, a housing facility can ``self-
certify'' that it falls under the Fair Housing Act exemption--
by simply filling out a straight forward, easy-to-understand
checklist of facilities and services designed for older folks.
This checklist contains a ``menu'' of some 114 facilities and
services in eleven categories; if a facility provides 10 among
them--like wheelchair accessibility, communal recreational
facilities, periodic vision or hearing tests, or fellowship
meetings--it qualifies as senior housing, and may exclude
families. If the 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. (Written testimony of Sara K. Pratt, Director of
the Office of Investigations, Office of Fair Housing and Equal
Opportunity, Department of Housing and Urban Development,
before the Subcommittee on the Constitution, Federalism, and
Property Rights, August 1, 1995 at 4.).
Ms. Pratt also testified to the extreme flexibility--and
cost-consciousness--built into the new guidelines:
[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
facilities and services may be provided on or off the
premises of the housing. 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. Id.
The new regulations do not require lavish services, as the
majority would have us believe; nor do they mandate facilities
affordable only by the well-heeled. Rather, they simply embody
what's already being offered in bona fide senior communities--
of all sorts--across the map. And if a facility is providing at
least 10 of the 114 facilities or services on the list, it
qualifies for the exemption.
Proponents of H.R. 660 say that it will make it easier, and
surer, for a housing community to determine whether it
qualifies for the Fair Housing Act exemption. I ask: what could
be easier than a one-page checklist? What could be surer than
self-certification? This, in my view, is a bare bones set of
requirements for getting out from under the anti-discrimination
provisions of the Act.
The ``bright line'' standard for which H.R. 660 trades away
the ``significant facilities and services'' requirement is
this: at least one 55-year-old must live in 80 percent of the
units. Let's look at what that really means. Say, for example,
that a complex contains 100 units, all of which are occupied by
two people, and 80 percent of which are occupied by someone
over 55. In this hypothetical community--which will be able to
lawfully discriminate against families under H.R. 660--as few
as 80 residents of the 200 could be 55 or over, while 120 could
be under 55. More than half the residents of this community--
which need not provide a single special amenity--can be under
55 to qualify for the exemption, and legally keep families out.
To my mind, the math just doesn't add up to fairness for
families and children. I believe this bill will give a green
light to the very kind of ``all adult'' housing facilities that
we in 1988 sought to proscribe. I cannot support it.
Joe Biden.
XII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the changes in existing law made
by the bill, as reported by the committee, are shown as follows
(existing law proposed to be omitted is enclosed in bold
brackets, new matter is printed in italic, and existing law
with no changes is printed in roman):
SECTION 807 OF THE FAIR HOUSING ACT
exemption
Sec. 807. (a) * * *
(b)(1) Nothing in this title limits the applicability of
any reasonable local, State, or Federal restrictions regarding
the maximum number of occupants permitted to occupy a dwelling.
Nor does any provision in this title regarding familial status
apply with respect to housing for older persons.
(2) As used in this section, ``housing for older persons''
means housing--
(A) provided under any State or Federal program that
the Secretary determines is specifically designed and
operated to assist elderly persons (as defined in the
State or Federal program); or,
(B) intended for, and solely occupied by, persons 62
years of age or older; or
[(C) intended and operated for occupancy by at least
one person 55 years of age or older per unit. In
determining whether housing qualifies as housing for
older persons under this subsection, the Secretary
shall develop regulations which require at least the
following factors:
[(i) the existence of significant facilities
and services specifically designed to meet the
physical or social needs of older persons, or
if the provision of such facilities and
services is not practicable, that such housing
is necessary to provide important housing
opportunities for older persons; and
[(ii) that at least 80 percent of the units
are occupied by at least one person 55 years of
age or older per unit; and
[(iii) the publication of, and adherence to,
policies and procedures which demonstrate an
intent by the owner or manager to provide
housing for persons 55 years of age or older.]
(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.
* * * * * * *
(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.