SPEAKERS       CONTENTS       INSERTS    Tables

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62–479

2000
JUSTICE IN FAIR HOUSING ENFORCEMENT
ACT OF 1999

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON
H.R. 2437

OCTOBER 28, 1999

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Serial No. 22

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

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Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina

MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York

CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel

C O N T E N T S

HEARING DATE
    October 28, 1999
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TEXT OF BILL

    H.R. 2437

OPENING STATEMENT

    Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution

WITNESSES

    Black, Brian D., Director of Building Codes and Standards, Eastern Paralyzed Veterans Association

    Buckland, Kelly J., Executive Director, Idaho State Independent Living Council, Boise, ID

    Kitay, Theresa L., Partner, Coughlin & Kitay, P.C.

    Malleris, William J., President, Maple Court Development, Inc.

    Myers, Paul E., Assistant Director of the City of Cincinnati's Department of Buildings and Inspections, and President of the Building Officials and Code Administrators International Inc., City of St. Bernard and the Village of Evendale, OH
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    Tipton, Mark Ellis, CEO and Chairman of the Board of Directors, Smart House, Inc., and past President of the National Association of Home Builders

    Tozer, Len, Tozer Builders, Inc.

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Black, Brian D., Director of Building Codes and Standards, Eastern Paralyzed Veterans Association: Prepared statement

    Buckland, Kelly J., Executive Director, Idaho State Independent Living Council, Boise, ID: Prepared statement

    Kitay, Theresa L., Partner, Coughlin & Kitay, P.C.: Prepared statement

    Lee, Bill Lann, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice: Prepared statement

    Magagna, Joan A., Chief, Housing and Civil Enforcement Section, U.S. Department of Justice: Letter to Tozer Builders dated May 10, 1999

    Malleris, William J., President, Maple Court Development, Inc.: Prepared statement

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    Myers, Paul E., Assistant Director of the City of Cincinnati's Department of Buildings and Inspections, and President of the Building Officials and Code Administrators International Inc., City of St. Bernard and the Village of Evendale, OH: Prepared statement

    Tipton, Mark Ellis, CEO and Chairman of the Board of Directors, Smart House, Inc., and past President of the National Association of Home Builders: Prepared statement

    Tozer, Len, Tozer Builders, Inc.: Prepared statement

APPENDIX
    Material submitted for the record

JUSTICE IN FAIR HOUSING ENFORCEMENT ACT OF 1999

THURSDAY, OCTOBER 28, 1999

House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to call, at 2:30 p.m., in Room 2237 Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] Presiding.

    Present: Representatives Charles T. Canady, Asa Hutchinson, Melvin L. Watt, and Barney Frank.
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    Staff present: Bradley S. Clanton, Counsel; Jonathan A. Vogel, Counsel; Paul B. Taylor, Counsel; Susana Gutierrez, Clerk; Sharee Freeman, Counsel, Committee on the Judiciary; and Anthony Foxx, Minority Counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

    Mr. CANADY. The subcommittee will now be in order.

    The subcommittee convenes today to conduct a hearing on H.R. 2437, legislation entitled ''the Justice in Fair Housing Enforcement Act of 1999.'' The Fair Housing Amendments Act of 1988 expanded fair housing and antidiscrimination protections to the disabled and imposed minimum standards for the design of certain apartment housing. Passage of the act was one of the first times a civil rights law had ever been used to adopt a Federal building code. When Congress passed the act in 1988, however, little attention was devoted to how the accessibility requirements would be implemented.

    The act stated that while HUD could encourage States and local governments to review building plans for compliance with the accessibility requirements, HUD could not require such review. Therefore, States and local governments have no formal role under the act in interpreting or enforcing the Federal accessibility requirements.

    Traditionally, it has been the industry practice for architects and builders to rely on local building code authorities for assurance of legal compliance. Many local jurisdictions had some accessibility requirements for housing prior to 1988, so many builders assumed that if they had received a local building permit, the building was in compliance with all applicable accessibility requirements. However, since the Federal accessibility requirements generally go beyond local accessibility codes, buildings that meet local requirements do not necessarily meet Federal requirements.
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    To this day, architects and builders cannot rely on local building code agencies to inform them of what accessibility designs are required under Federal law, and there is no place for builders or architects or others to go to get building plans approved for compliance with Federal law.

    Whereas the Federal Government has made efforts to educate the building community at the local level when implementing Federal standards affecting local builders in other areas, such as EPA's implementation of water drainage standards under the Clean Water Act, no such coordinated program designed to educate builders at the local level accompanied HUD's implementation of these novel Federal accessibility design requirements.

    Indeed, I think it is fair to say that HUD's efforts to educate builders can best be described as minimal.

    At the same time, HUD appears to be aggressively pursuing a goal articulated by HUD's Secretary, Andrew Cuomo, to double the number of actions brought for housing discrimination, including those for violations of Federal accessibility standards.

    Congressman Walter Jones has introduced H.R. 2437, the Justice in Fair Housing Enforcement Act of 1999, which would provide relief from prosecution to those in the building community who may have committed building design violations under the Fair Housing Amendments Act of 1988, at a time when HUD failed to ensure that novel Federal building code requirements were reflected in local building codes on which builders have traditionally relied and when HUD's own interpretation of those legal requirements was particularly unclear.
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    H.R. 2437 would exempt from prosecution under the act only buildings that, one, were designed for first occupancy during the period beginning March 13, 1991, the date on which the act became effective, and ending on the date of H.R. 2437's enactment; and two, receive a building permit or other similar approval from the relevant State or local building authorities as meeting the requirements of the applicable building code.

    I know that this is a controversial piece of legislation, and I think it is important for the subcommittee to hear a range of perspectives on this. That's why we are having today's hearing. I look forward to hearing from all of the witnesses who are here today; and I do want to thank Representative Jones for his leadership in bringing this issue to the attention of the subcommittee.

    I will now recognize Mr. Watt.

    [The information referred to follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 2437

To provide an exception from the enforcement of an accessibility construction requirement of the Fair Housing Act for certain buildings constructed in compliance with a local building code.
     
IN THE HOUSE OF REPRESENTATIVES
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JULY 1, 1999
Mr. JONES of North Carolina introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
To provide an exception from the enforcement of an accessibility construction requirement of the Fair Housing Act for certain buildings constructed in compliance with a local building code.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
    This Act may be cited as the ''Justice in Fair Housing Enforcement Act of 1999''.
SEC. 2. EXCEPTION FROM ENFORCEMENT OF CONSTRUCTION REQUIREMENT.
    The requirement of section 804(f)(3)(C) of the Fair Housing Act (42 U.S.C. 3604(f)(3)(C)) shall not apply with respect to any building that—
    (1) was designed for first occupancy during the period beginning March 13, 1991 and ending on the date of the enactment of this Act; and
    (2) received a building permit or other similar approval from the relevant State or local building authorities as meeting the requirements of the applicable building code.

    Mr. WATT. Thank you, Mr. Chairman. I will be very brief.

    I want to apologize, first of all, for being late getting here from the floor and apologize in advance because I am going to have to leave to go back to the floor to debate a bill at 3. We are dealing with the fact that this bill that's on the floor, this appropriations bill, doesn't have any money in it for North Carolina's hurricane relief, a matter which I am sure I have an interest in and probably some people on this panel have an interest in, too.
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    So I will just ask unanimous consent to revise and extend my remarks, put an opening statement in at the end.

    Mr. CANADY. Without objection.

    Mr. WATT. I do have some statements that have been submitted that I would ask unanimous consent be inserted in the record, one from the U.S. Department of Justice and several from different individuals and organizations; and I won't elaborate what they are, but I would ask unanimous consent that they be inserted into the record.

    Mr. CANADY. Without objection, those materials will be inserted in the record.

    Mr. WATT. I will yield back.

    Mr. CANADY. I thank the gentleman.

    I also ask unanimous consent that several statements be entered in the record, a statement by Congressman Walter Jones; a statement submitted by the National Association of Realtors, and a letter by two builders sent to Representative Northrup. Without objection, those items will be entered in the record as well.

    We will now go to our panel of witnesses. I will introduce the witnesses and we will move forward with the testimony. I want to thank all of you for being here and being patient with us as we have come to the beginning now.
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    The first witness at this hearing this afternoon will be Len Tozer. Mr. Tozer is a Licensed General Contractor who heads Tozer Builders, Inc., in Winterville, North Carolina. He is a self-described one-man show.

    Following him is William Malleris. Mr. Malleris is President of Maple Court Development, Inc. He is a developer of accessible housing who provides barrier-free units to persons with disabilities in an integrated environment in which persons with disabilities live alongside those without disabilities.

    Our third witness will be Mark Ellis Tipton, who is the Chief Executive Officer and Chairman of the Board of SMART HOUSE, Inc. Mr. Tipton has served as the President of the National Association of Home Builders, 1991, and was President of the North Carolina Builders Association in 1979, and the Greenville Home Builders Association in 1978.

    The next witness will be Brian Black. Mr. Black is the Director of Building Codes and Standards for the Eastern Paralyzed Veterans Association in Buffalo, New York, where he helps develop accessibility requirements and instructs design professionals and enforcement officials on accessibility requirements.

    Following Mr. Black, the fifth witness on this panel will be Paul E. Myers. Mr. Myers currently serves as the Assistant Director of the City of Cincinnati's Department of Buildings and Inspections. He is currently the President of the Building Officials and Code Administrators International, Inc., and since 1992 he has been a member of its board of directors. He is also a member of the board of directors of the International Code Council. He has represented the Building Code Officials and Code Administrators International, Inc., as a member to the board for the coordination of model codes.
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    Following Mr. Myers, as our final witness, will be Kelly J. Buckland, who is the Executive Director of the State Independent Living Council. Mr. Buckland has been actively involved in disability issues since 1979. Over the past decade, Mr. Buckland has worked closely with the Idaho State Legislature on issues affecting people with disabilities, including passage of the Personal Care Services bill. In 1997, Mr. Buckland was named by the Idaho Public Affairs Digest as one of the 100 most influential people in Idaho.

    And don't worry, Ms. Kitay, you will actually be the last witness. We are not going to omit you. Our final witness will, in fact, be Theresa Kitay, who is a partner at Coughlin & Kitay and a former attorney for the Department of Housing and Urban Development in the Office of Fair Housing and Equal Opportunity. She specializes in accessible design litigation under the Fair Housing Act.

    We thank all of you for being with us here this afternoon.

    I would ask that you do your best to summarize your testimony in no more than 5 minutes. Without objection, your full written statements will be made a part of the permanent hearing record.

    I would point out to you the light which is on the table. When it is green, that means there is time remaining on your 5 minutes. When it is red, that means your time has expired.

    Now, I don't think anyone here is going to insist on strict compliance with the 5-minute rule, but this is a Thursday afternoon and the last vote is going to occur in the House pretty soon. So to the extent we can move through this and then have a productive session of questions expeditiously, I think that would be very good.
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    So we thank you, and now we will move to our first witness, Mr. Tozer.

STATEMENT OF LEN TOZER, TOZER BUILDERS, INC.

    Mr. TOZER. Mr. Chairman, Members of Congress, I would like to thank you for the opportunity to address you today. I wasn't sure when I would speak today. I was going to say, as Paul Harvey says, and now the other side of the story, but it appears as though I am the story.

    My name is Len Tozer. I am a Licensed General Contractor building single-family, multifamily and commercial buildings in the Winterville, North Carolina, area. On May 10, 1999, I was cited for possible violations of the Federal Fair Housing Act. To have the guns of the United States Department of Justice aimed at me was very disturbing. What law had I violated?

    As a builder, I do not design buildings, but I construct them based on plans drawn by engineers and architects. In North Carolina, we submit plans drawn by engineers and architects to our local building inspections department. They approve them and issue the builder building permits. The project that I was cited on, Meridian Park, was approved by our local building inspections department based on the North Carolina State Building Code. We passed all inspections and were issued certificates of occupancy, only to be cited by the Justice Department.

    How was I to know this law? I followed the procedure required by the State of North Carolina.
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    Why are there so many builders, architects, engineers and developers across the country unaware of this law? This is a huge problem, but it is not the law of the builders or the architects or the engineers. It is the way this law has been administered.

    I support this law 100 percent. Having a good friend who is a quadriplegic, I know firsthand the difficulties of the disabled community. In fact, because of the poor administration of this law, the disabled community has been shortchanged. If the Federal Government had mandated this law to the States, as they did with wetlands, to be incorporated into their building codes, we wouldn't have this problem.

    In North Carolina, our building code is constantly changing and we, as builders, architects and engineers, comply. None of us would willfully violate the law and lose our licenses.

    As a small builder with no employees, it is frightening to think of the consequences of the violation of this Federal law. To think that all I have worked for for the past 25 years could be ruined is very disturbing. Many of the documents I have looked at on the penalties of other builders only brings me to the conclusion that my business is in jeopardy.

    By North Carolina State law, I am required to maintain a certain amount of working capital to maintain my license. I am at the minimum. I do not have the resources to retrofit these units to meet the Federal law.

    I feel I have been treated unfairly, as well as the disabled community. HUD has spent more money policing this law than educating builders, architects and engineers. As a matter of fact, builders don't design; we build.
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    HUD's education should be aimed at architects and engineers. The bounty hunting by HUD is wrong; it doesn't fix the problem, and it is unfair.

    As a decorated Vietnam veteran, 31 years ago I was sent to a hell hole called Vietnam. It could have cost me my life. Now I am looking at the possibility of the Department of Justice destroying my business. To say I'm disappointed in my Government is an understatement.

    For me, it is too late, but for my fellow builders and the disabled community, the time is now: the time to right a wrong, fix a problem and make this law what it was intended to be at the time it was written.

    Thank you.

    Mr. CANADY. Thank you, Mr. Tozer.

    [The prepared statement of Mr. Tozer follows:]

PREPARED STATEMENT OF LEN TOZER, TOZER BUILDERS, INC.

    Mr. Chairman and Members of Congress, I would like to thank you for the opportunity to address you today and, as Paul Harvey says ''Now the other side of the story.''

    My name is Len Tozer and I'm a licensed general contractor building single-family, multi-family and commercial buildings in the Winterville, N.C. area. On May 10, 1999, I was cited for possible violation of the Federal Fair Housing Act. To have the guns of the U.S. Department of Justice aimed at me was very disturbing. What law had I violated?
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    As a builder I do not design buildings, but I construct them based on plans drawn by engineers and architects. In North Carolina we submit plans drawn by engineers and architects to our local building inspections department. They approve them and issue the builder building permits. The project that I was cited on, Meridian Park, was approved by our local building inspections department based on the North Carolina Building Code. We passed all inspections and were issued certificates of occupancy, only to he cited by the Justice Department. How was I to have known of this law? I followed the procedure required by the State of North Carolina.

    Why are there so many builders, architects, engineers and developers across this country unaware of this law? There is a big problem, but it's not the law or the builders, architects and engineers. It is the way this law has been administered. I support this law 100%. Having a good friend who is a quadriplegic, I know first hand the difficulty of the disabled community. In fact, because of the poor administration of this law, the disabled community has been shortchanged. If the Federal Government had mandated this law to the states, as they did with wetlands, to be incorporated in their building codes, we wouldn't have this problem. In North Carolina, our building code is constantly changing and we as builders, architects and engineers comply. None of us would willingly violate the law and lose our licenses.

    As a small builder with no employees, it is frightening to think of the consequences of the violation of this federal law. To think all that I have worked for over the past 25 years could be ruined. It is very disturbing. Many of the documents I have looked at on the penalties of other builders only brings me to the conclusion that my business is in jeopardy. By North Carolina State law, I am required to maintain a certain amount of working capital to maintain my license. Currently, I'm right at the minimum. I do not have the resources to retrofit these units to meet the Federal law.
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    I feel I have been treated unfairly, as well as the disabled community. HUD has spent more money policing this law than educating builders, architects and engineers. As a matter of fact, builders don't design we build. HUD's education should be aimed at architects and engineers. The bounty hunting by HUD is wrong, it doesn't fix the problem and is unfair.

    As a decorated Vietnam Veteran, 31 years ago I was sent to a Hell Hole called Vietnam which could have cost me my life. Now I am looking at the possibility of the Department of Justice destroying my business. To say I'm disappointed in my government is an understatement. For me it is too late, but for my fellow builders and the disabled community the time is now. Time to right a wrong, fix a problem and make this law what is was intended to be at the time it was written.

Table 1



Table 2

Table 3

    Mr. CANADY. Mr. Malleris.

STATEMENT OF WILLIAM J. MALLERIS, PRESIDENT, MAPLE COURT DEVELOPMENT, INC.

    Mr. MALLERIS. Mr. Chairman, members of the committee, I thank you for the opportunity to come before the subcommittee.

    The proposed bill will exempt the building industry from complying with the construction requirements under the Fair Housing Act. I, as a developer, have integrated, accessible housing. Giving you an example, I completed the Maple Court Apartments in Naperville, Illinois, consisting of 28 fair market units primarily for people without disabilities and 20 barrier-free affordable units primarily for people with disabilities. We also achieved economic integration from somebody at $400 a month to somebody earning a quarter of a million dollars a year.
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    Accessible housing stock in this Nation needs to be increased at a massive level in order to meet the needs of persons with disabilities.

    The fair market units that I did at Maple Court met the seven technical requirements of accessibility and are appealing to people with and without disabilities. While the barrier-free units went beyond the minimum standards, the fair market units, including those seven technical requirements, were very crucial. I was able to prove that a typical one-bedroom apartment at 735 square feet; a two-bedroom, one-bath at 842; and a two-bedroom, two-bathroom, at 956 square feet can all meet the requirements if designed properly.

    Presently, I am completing a ranch townhome development, creating a homeownership option for people with disabilities and people without disabilities.

    As a developer who just happens to have a disability, I am able to understand several aspects of those with disabilities experience and those of us in the development business experience.

    I do believe the proposed bill is unfair to people with disabilities who have waited so long to obtain a minimal level of accessibility in housing. It seems that people with disabilities are always paying the price for the mistakes of others, or nonknowledge, and again we are carrying the burden. In the Chicago metropolitan area, there has been a refusal of builders and developers to comply with the fair housing accessibility standards. Out of 49 developments tested in the Chicago metropolitan area by the Justice Department on accessibility, with one of the disability organizations in the area, I was the only development in compliance. It is sad. And personally when I find out that other developers refuse to do it, refuse to do it after knowing it, it is not right.
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    So where do we go? What do we do? The situation until the suits and things were filed in the Chicago metropolitan area did get some people to start responding to making those developments. People with disabilities shouldn't be warehoused. We want integration; we want to be a part of the community.

    Developers have been provided an extended amount of time to learn and implement, and what has happened now has been contrary to what we believe in.

    In 1996, the building officials code was approved, providing Chapter 11 accessibility requirements, which encompasses the seven technical requirements. BOCA is utilized at the local level, which the building officials follow. In the City of Naperville, where I come from, the head of the building department utilizes this with all developers, and it is utilized successfully, making sure that people are following it properly.

    I believe there has been a sufficient amount of time for people to learn. There have been 10 years that have gone by. I do believe that a developer who has not complied with the fair housing accessibility requirements has a responsibility to take corrective measures.

    In many cases, the Department of Justice requires the developer to establish a fund or to make corrections on accessibility when a person with disability requires that unit or wants that particular unit. The size of the fund is contingent on the size of the development and the size of the developer, therefore allowing the corrections to be achievable for smaller developers. I am a smaller developer.

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    I do believe that this bill releases the responsibility of developers for not complying with fair housing, and I don't feel that is correct and it is not fair to the disabled community.

    I hope that no matter what happens and what comes about, everybody has to take responsibility. As a developer, I am responsible for following all the codes, whether it is electrical, plumbing, all aspects of construction. That includes accessibility requirements also.

    Thank you, Mr. Chairman.

    Mr. CANADY. Thank you, Mr. Malleris.

    [The prepared statement of Mr. Malleris follows:]

PREPARED STATEMENT OF WILLIAM J. MALLERIS, PRESIDENT, MAPLE COURT DEVELOPMENT, INC.

    The Honorable Chairman and Honorable Members of the Subcommittee on the Constitution thank you for the opportunity to testify before this Subcommittee concerning H.R. 2437 ''Justice in Fair Housing Enforcement Act of 1999''.

    The proposed bill will exempt the building industry from complying with the construction requirements under the Fair Housing Act which will adversely affect the lives of individuals with disabilities from obtaining needed accessible housing.

    The Fair Housing Amendments Act requires all new multifamily buildings constructed since 1991 with 4 or more units to include 7 accessibility features. The building industry has had 10 years to understand and comply with these minimum accessibility requirements which are reasonable, attainable, and include:
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1. Accessible Entrance on an Accessible Route

2. Accessible Public and Common-Use Areas

3. Usable Doors

4. Accessible Routes into and Through the Dwelling Unit

5. Accessible Light Switches, Electrical Outlets and and Environmental Controls

6. Reinforced Walls in Bathroom

7. Usable Kitchens and Bathrooms

    I am a Developer of integrated accessible housing and on July 5, 1996 completed construction of Maple Court Apartments in Naperville, Illinois which is a 48 unit development providing 20 barrier free affordable units for persons with disabilities integrated with 28 fair market units primarily for persons without disabilities. Maple Court has become a national and international model for the integration of accessible housing, but also economic integration where the income range is from $400/month in a barrier free affordable unit to $250,000 annually in a fair market unit.

    National statistics indicate unemployment of persons with disabilities is at 80%. Maple Court has attained 65% employment amongst those with disabilties, therfore when accessibility has been created at home it provides the base necessary for employment goals to be reached by those of us with disabilities.
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    The accessible housing stock in this nation needs to be increased at a massive level in order to meet the needs of persons with disabilties and the growing senior population which has nowhere to go.

    The fair market units at Maple Court Development for persons primarily without disabilties meet and go beyond the 7 technical accessibility requirements. This is appealing to these residents knowing they can function independently if temporarily disabled, or when family members or friends with disabilities are visiting.

    While the barrier free affordable units go beyond the minimum accessible standards, the fair market units at Maple Court Development encompass the 7 technical requirements under the fair housing act which are easily achievable by developers.

    I have been able to prove that a typical one bedroom apartment at 735 sq feet, two bedroom—one bath apartment at 842 sq feet, and two bedroom—two bath apartment at 956 sq feet can fully meet the 7 technical accessibility requirements under the fair housing amendments act at a very reasonable cost especially during the design phase of new construction.

    Maple Court Development was 70% full at certificate of occupancy and 100% full 35 days later which includes all the units for persons with and without disabilities. I have proven that when it is built properly meeting the accessibilty requirements the units are desired by everyone.

    Presently, I am completing an 8 unit ranch townhome development creating home ownership for persons with and without disabilities. The ranch townhomes meet and go beyond the seven technical accessibility requirements under the fair housing amendments act. The fair housing amendments act only requires the accessibility standards in relation to for sale ranch townhomes and not 2 and 3 story for sale townhomes, therefore excessive cost arguements are not able to be used by the average developer.
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    As a developer who just happens to have a disability, I am able to understand several aspects of what those of us with disabilties experience and those of us in the development business experience.

    The proposed bill H.R. 2437 is unfair to people with disabilities who have waited so long to obtain a minimum level of accessibility in housing. It seems people with disabilities are always paying the price for the mistakes or non-knowledge of others. This is unreasonable for us to carry this burden again and again.

    In the Chicago Metropolitan Area, there has been a refusal by developers to follow the fair housing accessibility technical requirements. In fact, the Department of Justice and Access Living a disability rights organization tested 49 new housing developments in the area and Maple Court Development consisting of 48 apartments which I developed, built, and own was the only new housing development in compliance with the 7 technical accessibility requirements of the fair housing amendments act. How sad this is for people with and without disabilities.

    The residents with and without disabilities at Maple Court have indicated to me that more developers should be providing the minimum level of accessibility creating much needed integration in housing. People with disabilties desire integration to learn and live amongst others with and without disabilities just like anyone else, and the fair housing act provides this fairness.

    In 1991, the Fair Housing Amendements Act concerning the 7 technical accessibility requirements went into affect.
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    Developers have been provided an extended amount of time to learn and implement the 7 technical accessibility requirements of the fair housing amendments act. As a developer, non-knowledge is not an acceptable answer. We are required to learn and be informed when their are new requirements in all aspects of construction whether its in structural design, electrical, plumbing, safety or other areas. If a developer, did not institute new safety requirements in the area of electrical wiring installation they would be required to make the appropriate changes, non-knowledge would be unacceptable.

    In 1996, the Building Officials Code (BOCA) enacted Chapter 11 on Accessibility which consists of the 7 technical requirements on accessibility compliance. BOCA is used by the various local municipalities to enforce several areas of the building code provisions. Local building officials receive training through BOCA and local municipalities utilize the BOCA standards in their ordinances. Also, smaller municipalities who have limited staff submit building plans to BOCA for review and approval.

    In the City of Naperville, Illinois where I reside, the building department enforces the BOCA Chapter 11—Accessibilty Standards which includes the 7 technical accessibility requirements.

    I believe there have been sufficient means and time for developers to learn and implement the 7 technical accessibility requirements in new housing developments throughout the nation. Developers utilize the assistance of consultants, architects, engineers and others to keep up with new requirements in the construction industry. The new requirements in housing accessibility exist at the national level and local level which are in place.
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    The developer who has not complied with the fair housing accessibility requirements has a responsibility to take corrective measures. In many cases the Department of Justice has required the developer to establish a fund to make corections on accessibility when a person with a disability desires that particular housing. The size of the fund is contingent on the size of the development therefore allowing the corrections to be achievable for smaller developers.

    H.R. 2437 releases the responsibility of developers for not complying with fair housing accessibility standards over the past 10 years. The end result is people with disabilties are forced to carry the burden of others and many developers are freed of any responsibility for new housing developments not in compliance. This is unjust to people with disabilities who are in need of accessible housing and the minimum level of accessibility which is provided in the 7 technical requirements under the act.

    As a person with a disability, I and others in my same situation should not be blocked from obtaining needed accessible housing and be forced to sacrifice because of the non-knowledge of developers.

    As a developer, I am responsible for knowing, understanding, and implementing the 7 technical accessibility requirements whether under the fair housing amendments act, building officials code, or applicable state accessibility codes. The burden is on myself as a developer to know the laws, codes, and requirements in construction whether it is accessibility, electrical, plumbing, concrete, carpentry, heating and cooling, sprinkling, fire alarms or others.

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    H.R. 2437 is not the right answer. If the Subcommittee on the Constitution feels it is necessary to educate developers and government officials on the 7 technical accessibility requirements under the fair housing amendments act or building officials code (BOCA), please find another means in order for persons with disabilities not to carry the burden of developers for the past 10 years of new housing developments throughout this nation.

    I would like to thank the Honorable Chairman and Honorable Members of the Subcommittee on the Constitution of the U.S. House Judiciary Committee to provide this testimony before you.

    Mr. CANADY. Mr. Tipton.

STATEMENT OF MARK ELLIS TIPTON, CEO AND CHAIRMAN OF THE BOARD OF DIRECTORS, SMART HOUSE, INC., AND PAST PRESIDENT OF THE NATIONAL ASSOCIATION OF HOME BUILDERS

    Mr. TIPTON. Good afternoon, Mr. Chairman, members of the subcommittee. My name is Mark Tipton. I am the Chief Executive Officer and Chairman of the Board of SMART HOUSE, Inc., in Raleigh, North Carolina; and I want you to get back to make that vote, Mr. Watt.

    Mr. WATT. It is not a vote; it is just lobbying.

    Mr. TIPTON. I am just a second-generation home builder from Greenville, North Carolina, and I previously served as the President of the North Carolina Home Builders Association in 1991 and President of the National Association of Home Builders in 1991.
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    On behalf of the 200,000 members of NAHB, I am pleased to participate in today's dialogue on Congressman Walter B. Jones's legislation, H.R. 2437, the Justice in Fair Housing Enforcement Act. We applaud the chairman's effort to provide a venue for this important discussion.

    In addition, I would be remiss if I did not take a moment to express our sincere thanks to Congressman Jones. We all wouldn't be here around the table today, airing our views about this issue and, more importantly, working toward a solution, were it not for the Congressman. It was his immediate action and specifically the introduction of his bill that have fostered today's dialogue, and for that we are very grateful.

    I want to begin by being perfectly clear. NAHB and all of its members fully support the Fair Housing Act and the goals that it seeks to achieve. We in no way condone the actions of those who willfully and knowingly disregard accessibility requirements, nor do we seek to protect those persons from the law.

    Today, Mr. Chairman, I speak for our members who have in good faith sought to abide by our country's laws, whether they are local, State or Federal. Most of them are small builders, sometimes just a one-man or a one-woman operation, just as you have just heard from Len Tozer. Builders rely on others for specific expertise, including architects, engineers, building code officials and others.

    What happens when those experts are unaware of the law's existence? I ask you, where does a builder go to get his plans fully approved? What authority grants a builder finality and certainty with regard to his permit and compliance?
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    In many cases, all the experts gave builders the green light to continue developing their projects. Their architects crafted the design. Their engineers provided guidance as to the structural integrity. State and local building code officials and, in some cases, even FHA approved the structure as it is actually developed.

    These builders followed the only process they knew. How can they be found liable for a law that was never clearly defined in the one source all builders look to, the local building code?

    I have before me a letter from a builder in Louisville, Kentucky, who has precisely that problem. He made plans to build an apartment in the early 1990's, after the law went into effect, got HUD approval and, mind you, got HUD approval, obtained FHA mortgage insurance, built the building in a manner that he thought complied with the law and now 8 years later is faced with an $850,000 lawsuit from a HUD-funded advocacy group that, if successful, will put this 53-year-old, small, family-owned company out of business.

    Where did the problem begin? The statute paid no attention to how the requirements were going to be implemented. They were not put into the building code. HUD does not have the authority to review or approve building plans for fair housing compliance, and while the local building inspector may review the plans, he or she cannot sign off on a Federal requirement not included in their local building code.

    Mr. Chairman, builders rely on codes. When builders receive a local building permit, they believe that the building plan complies with all of the necessary requirements.
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    Imagine the surprise then, years after the fact, when the builder discovers that the building is not in compliance with the Federal law, specifically, the Federal Fair Housing Act. The bottom line is, builders are left with no place to go to get building plans approved for compliance with Federal accessibility requirements, even as we speak today.

    Mr. Chairman and other members, builders follow the law. The problem clearly is a lack of awareness. Therefore, shouldn't Congress and HUD be more interested in funding educational and awareness programs, rather than enforcement?

    We all share common goals, including protecting the rights of the disabled in meeting the Nation's housing needs. We would like to work with you, HUD, the Department of Justice, the model code organizations and the disability community to put the guidelines into clear, understandable code language and to provide a fair solution for those who have already been impacted by this problem.

    Again, Mr. Chairman, and other members, I am here today to declare NAHB's firm commitment to working with all of those involved to find a solution to this problem. I thank you for inviting me to testify, and I have submitted a more detailed written report to place in the record for you and your colleagues to review.

    I am happy to answer any questions. Thank you.

    Mr. CANADY. Thank you, Mr. Tipton.

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    [The prepared statement of Mr. Tipton follows:]

PREPARED STATEMENT OF MARK ELLIS TIPTON, CEO AND CHAIRMAN OF THE BOARD OF DIRECTORS, SMART HOUSE, INC., AND PAST PRESIDENT OF THE NATIONAL ASSOCIATION OF HOME BUILDERS

INTRODUCTION

    Good morning, Mr. Chairman and members of the Subcommittee, my name is Mark Ellis Tipton. I am the Chief Executive Officer and Chairman of the Board of SMART HOUSE, Inc. in Raleigh, North Carolina. I have previously served as the President of the North Carolina Home Builders Association and, in 1991, as the President of the National Association of Home Builders. On behalf of the 200,000 members of the National Association of Home Builders, I am pleased to participate in today's dialogue on the Federal Accessibility requirements under the Fair Housing Act and Representative Walter Jones' legislation, H.R. 2437, the Justice in Fair Housing Act. We applaud the Chairman's effort to provide a venue for this important discussion.

    In addition, NAHB is extremely grateful to Representative Jones, as it was his immediate action, and specifically the introduction of his bill—H.R. 2437, that has fostered today's dialogue. While all parties involved may not agree that H.R. 2437 is the ideal solution, NAHB contends that, if nothing else, the legislation represents a starting point from which to work.

    Mr. Chairman, the National Association of Home Builders and its 200,000 members, which create more than 8 million American jobs, have long believed that every American should have the opportunity to have a safe, affordable, accessible home, as part of the American Dream. Providing this opportunity is a challenge that home builders accept because we care about housing and we care about the communities where we live and raise our families.
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    NAHB and all of its members fully support the Fair Housing Act and the goals that it seeks to achieve. In fact, NAHB policy expresses our strong commitment to ensure that all builders fully comply with the Fair Housing Act, and further, that we in no way condone the actions of those who willfully and knowingly disregard its requirements—nor will we seek to protect those persons from the law.

    Mr. Chairman, I am not here to assess blame. I believe we have this problem today because enacting the 1988 Fair Housing Amendments Act was without precedent. What I mean by that is, it represents the first attempt to utilize a federal civil rights statute to enforce a building code. There was no road map to follow and unfortunately the Act's implementation scheme is flawed. In short, the statute lacks a mechanism for state and local adoption of the federal accessibility requirements.

    To further exacerbate the problem, most of our members are small builders—sometimes just a one-man or one-woman operation. Often, the sheer volume of the laws, codes and ordinances with which they must deal is overwhelming. While it is not an excuse, small businessmen and women often rely on others for their specific expertise—in the building industry those experts are architects, engineers, and building code officials.

    The architects craft the design, the engineers provide guidance as to structural integrity, and the state and local building code officials approve the structure as it actually developed. All components' parts were following the process as they knew it. Herein lies the disconnect—the statute did not acknowledge the process nor provide for an adequate means of implementation.
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BACKGROUND

    The Fair Housing Act, one of the nation's premier civil rights laws, prohibits discrimination in the rental or sale of housing based on race, color, religion, sex, national origin, familial status or disability. These are known as ''protected classes.'' Familial status and disability were added as protected classes in 1988 through the Fair Housing Act Amendments. With respect to disability, the law requires that certain features be built into new multifamily construction so that the units are accessible to the disabled. Failure to design and construct units so that they are accessible constitutes discrimination against the disabled.

    The 1988 amendments apply to buildings with four or more units, the ground floor units in a non-elevator building, and all units in an elevator building. The requirements only apply if the unit is one-story; two-story townhouses are not covered. The requirements apply to housing for rent or for sale (apartments or condos), and apply to all housing whether conventionally financed, or government subsidized. Again, this is the first time a civil rights law has been used as a means to implement federal building code requirements.

FAIR HOUSING AMENDMENTS ACT AND ITS ENFORCEMENT MECHANISMS

    When Congress passed the Fair Housing Amendments Act in 1988, there was little attention devoted to how the accessibility requirements were going to be implemented. The Act stated that while the Department of Housing and Urban Development (HUD) could encourage states and units of local government to review building plans for compliance with the accessibility requirements, HUD could not require such review. Therefore, the Act does not recognize any official role for states and local governments in interpreting or enforcing the federal accessibility requirements. While the Act affords that states and units of local government may review newly constructed buildings to determine compliance with the law, the law (now 42 USC Section 3604(f)(6)(B)) also provides that determinations by a state or a unit of local government shall not be conclusive in enforcement proceedings. Under the statute, even if a state or local government approves building plans, the builder cannot rely on those determinations of compliance in the event of an enforcement action.
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    Nor did Congress afford HUD a formal role. In fact, Congress declared that HUD had no duty to review or approve building plans to determine whether construction of the buildings complies with the requirements of the law. So, again, there is no place for builders, architects or others to go to get building plans approved for compliance with these federal accessibility requirements.

CURRENT STATUS OF FEDERAL ACCESSIBILITY REQUIREMENTS—NOT REFLECTED IN LOCAL CODES

    As initially discussed, these federal accessibility requirements are not part of local building codes and are not enforced by local building officials. Under the federal Fair Housing Act, it is up to the individual builder or architect to figure out whether the requirements apply to a particular building, and then make determinations as to how to design and build to the requirements. This is not the way builder and architects are used to doing business, since they generally rely on local building codes to inform them as to what the requirements are for a particular building.

    Many local jurisdictions had some accessibility requirements for housing prior to 1988, so many builders thought that if they received a local building permit, the building was in compliance with federal accessibility requirements. However, since the federal accessibility requirements generally go beyond local accessibility codes, buildings that meet local requirements do not necessarily meet federal requirements.

LACK OF CLEAR GUIDANCE

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    While the accessibility requirements have been on the books for some 10 years, there has been a lack of clear guidance on how to build units that comply with the law. After the law was passed, HUD recognized that more specific accessibility guidance was required. HUD took nearly two years to develop ''accessibility guidelines'' that provided guidance to the industry on how to build accessible units. However, this guidance was not written in building code language. Moreover, there is still ambiguity on some technical issues.

    While HUD issued supplementary questions and answers on the applicability of the guidelines in 1994, there were many issues still unresolved. In 1996, HUD issued the Fair Housing Act Design Manual, a comprehensive document that explains in detail how to comply with the guidelines. The manual originally contained a ''disclaimer'' indicating that users could not rely on the guidance, thereby undermining its use. The manual also contained material that went beyond the guidelines, which confused users as to what was based on the law, and what was a recommended practice. Even when the material was based on the law, the manual interpreted certain requirements in such a way as to go beyond the HUD guidelines.

    The manual was reissued in 1998, without the disclaimer and some of the material was repackaged. However, there remain key areas where the manual diverges from the guidelines. Since this manual is now being used by investigators to cite builders for noncompliance, this raises an issue of fairness and due process if the builder or designer did not use the manual during the construction process because it was not yet in print, or he was not aware of its existence.

    Furthermore, in many cases, HUD reviewed and approved properties as complying with all federal state and local laws, granting them FHA mortgage insurance, only to turn around later and bring claims against these same builders for having violated the federal accessibility requirements!
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INADEQUATE EDUCATION BY HUD/FOCUS ON ADA

    While HUD did conduct some nationwide training seminars on the accessibility guidelines in the early 90's, there has been little, if any, additional training directed at builders, architects, or local building code officials during the last eight years.

    It is important to note that in 1990, another federal law was adopted which focused on the needs of the disabled. The Americans with Disabilities Act (ADA) set accessibility standards for new commercial construction, which shifted attention away from the Fair Housing Act. Because state, local, and federal government attention was focused on ADA compliance, education about and enforcement of federal accessibility standards in the residential arena was not a priority of federal regulators or the disability community.

NAHB EDUCATION EFFORTS/POLICY INITIATIVES

    NAHB, the nation's largest trade association representing the residential building industry, conducted its own training sessions on the accessibility requirements in the early 1990s. In 1992, NAHB took the lead in publishing a manual for builders and architects on how to comply with the accessibility requirements. In addition, NAHB communicated with its members through its newspaper, Nation's Building News, and other publications, about the accessibility guidelines during this period.

    NAHB also took the lead with respect to promoting adoption of the accessibility requirements by the model code organizations, and review of such codes by HUD. NAHB has long recognized that the only way to ensure compliance with the federal accessibility requirements is to build the requirements into the model codes, which can then be adopted by the local code bodies. NAHB initiated a dialogue between HUD and the model building code organizations beginning in 1993. This effort culminated in the transmittal of the model code accessibility requirements to HUD for its review in 1997.
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    While HUD has stated that it cannot ''certify'' model codes as equal to the accessibility requirements, it has indicated its willingness to issue a determination that the codes are or are not ''consistent'' with the federal accessibility requirements.

STEPPED UP ENFORCEMENT

    Beginning in Chicago in 1996, and continuing today in areas such as Idaho, and North Carolina, builders have been hit with letters from government agencies and private fair housing enforcement groups claiming that buildings they have constructed are not in compliance with the law. In many cases, this letter is the first time the builder has heard of the accessibility requirements.

    Further, although federally appropriated through HUD's Fair Housing Initiatives Program (FHIP), there has been little, if any training or widespread educational campaigns directed towards builders, architects, or local building code officials during the last eight years. In fact, during discussions of the FY2000 budget, Congress would not agree to split FHIP moneys directed toward accessibility evenly between education and enforcement. The funding is still very heavily weighted toward enforcement. NAHB has tried to do its part with the available HUD funding by holding seminars and writing articles in the industry paper. However, those efforts reach only a limited segment of the industry. Not all builders are members of NAHB; and not all of association members are able to leave their business for industry seminars. In short, NAHB's reach is limited.

ACTION BY NAHB AND THE U.S. CONGRESS
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    NAHB believes that Congress did not intend to create this confusion and, therefore, would like to work with all involved parties to put the guidelines into clear, understandable, code language. Additionally, NAHB would like to see a portion of FHIP funds directed away from enforcement toward education, which is now woefully inadequate.

    To resolve these problems, NAHB has begun working with Congress through various means. Representative Walter Jones has introduced H.R. 2437, which provides a ''safe harbor'' for developers and owners for certain buildings constructed in compliance with the applicable local accessibility requirements. The Congressman introduced the legislation because he believes that his constituents are working through the existing process and have demonstrated a good faith effort to abide by the law. Additionally, NAHB has been working in conjunction with congressional appropriators to re-focus HUD's attention on this issue. Finally, a growing number of Members of Congress are sending letters of concern to HUD Secretary Andrew Cuomo. Congress, in a bi-partisan effort, is beginning to look to HUD for a solution to this problem.

CONCLUSION

    To reiterate, NAHB is firmly committed to working with all those involved—Congress, HUD, the Department of Justice, state and local regulators, and the disability community—to solve this problem.

    I want to particularly stress our interest in working with the disability community. When this problem initially came to the attention of NAHB, one of the first things we did was contact representatives of the disability community. Since then, NAHB has been involved in a dialogue with several of their representatives—and we very much look forward to continuing that dialogue, as we all work toward a solution. As I stated at the beginning of my testimony, Mr. Chairman, our goal, first and foremost, is to abide by the Fair Housing Act and to provide all individuals safe, affordable,—and accessible housing.
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    Again, thank you for inviting me to testify before you today. NAHB is grateful for your interest in bringing light to this serious and growing problem. I am happy to answer any questions that you may have.

    Mr. CANADY. Mr. Black.

STATEMENT OF BRIAN D. BLACK, DIRECTOR OF BUILDING CODES AND STANDARDS, EASTERN PARALYZED VETERANS ASSOCIATION

    Mr. BLACK. Good afternoon, Chairman Canady, Ranking Member Watt and members of the committee. My name is Brian Black, and I am here to submit testimony on behalf of the Eastern Paralyzed Veterans Association.

    The Eastern Paralyzed Veterans Association is submitting testimony today in opposition to H.R. 2437, the Justice in Fair Housing Enforcement Act. H.R. 2437 would strip persons with disabilities of a basic civil right that was recognized by Congress 10 years ago, the right to access housing in the private sector without encountering stepped entrances and narrow doorways.

    The Fair Housing Amendments Act was signed into law in September 1988. Its nondiscrimination housing provisions became effective in March 1989 and its new multifamily construction requirements applied to dwelling units that were ready for occupancy after March 1991. Thus, builders were provided an initial 2-year opportunity to comply with the new building code requirements.
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    Today, builders have been given ample opportunity to comply with the new construction requirements that have been in effect for over 8 years. Noncompliance on the part of the builders, architects and anyone else involved in the construction process constitutes negligence and a disregard of the law.

    H.R. 2437 would absolve from liability under the Fair Housing Amendments Act any building designed for first occupancy on or after March 13, 1991, up through the date of enactment, if the building was approved, quote, ''by relevant State or local building authorities as meeting the requirements of the applicable building code,'' end quote.

    In other words, if a builder obtained a building permit from a local or State authority, he or she should not be—could not be held liable for violations of the Fair Housing Act. But State and local building authorities are not, and in our opinion should not, be responsible for enforcing Federal Fair Housing Amendment requirements.

    Having said this, many State and local jurisdictions have enforced building codes that meet or exceed the construction requirements of the Fair Housing Act. In EPVA's region, New York State, New Jersey and the City of Philadelphia have made certain that their local building codes incorporate the protections of the Fair Housing Act. Numerous other States across the country have also amended their building codes to incorporate these protections.

    Most jurisdictions in our country use one of the model building codes that has been previously discussed for their construction regulations. All three model code groups—the Building Officials and Code Administration International, the Southern Building Code Congress International, and the International Conference of Building Officials amended their codes in the mid-1990's to reflect the Department of Housing and Urban Development's fair housing accessibility guidelines.
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    Recently, these three model code groups joined efforts to create the International Building Code for 2000, which also includes fair housing requirements.

    All of the model building codes discussed referenced either the 1992 or 1998 edition of the ANSI A117.1 private sector accessibility standard for their technical criteria. On October 25 of 1999, the Department of Housing and Urban Development issued a report stating it believes both editions of this standard are consistent with fair housing.

    H.R. 2437 would appear to repudiate the conscientious efforts of States, municipalities and the model code groups to reflect this important civil rights mandate in their respective regulations. As building codes evolved to reflect the congressional mandate, builders and developers followed suit, often spending considerable time and effort to change construction practices and revise site layouts and building plans to meet the fair housing requirements.

    Builders who have complied with the requirements of the act are not assisted by H.R. 2437. This amendment only benefits builders who have not complied, who have perpetuated the discrimination and who continue to deny access for people with disabilities to multifamily housing.

    The Fair Housing Act of 1988 was enacted to provide equal access to housing for people with disabilities. The law accounted for the fact that existing housing and the planned construction may not provide access by allowing almost 3 years for developers to incorporate the construction requirements into their projects. People with disabilities were patient when the law was passed. It is unconscionable to now ask them to again forgive blatant violations that have occurred over the past 8 years.
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    While this bill will certainly adversely affect millions of persons with disabilities seeking accessible housing, it would only benefit builders who have failed to comply with the law. Since 1991, when new construction requirements became effective, the United States Department of Justice has filed 20 cases in Federal court against housing developers. Sixteen of these cases were resolved by consent decree and four remain unresolved. An additional nine cases have been resolved out of court. Contrast this with the thousands of developers nationwide who have met or exceeded their Federal requirements, the access obligations thereof.

    In conclusion, the Eastern Paralyzed Veterans Association appreciates this opportunity to offer these comments and indicates that we do oppose H.R. 2437. Thank you.

    Mr. CANADY. Thank you, Mr. Black.

    [The prepared statement of Mr. Black follows:]

PREPARED STATEMENT OF BRIAN D. BLACK, DIRECTOR OF BUILDING CODES AND STANDARDS, EASTERN PARALYZED VETERANS ASSOCIATION

INTRODUCTION

    Good afternoon, Chairman Canady, Ranking Member Watt and members of the subcommittee. My name is Brian Black and I am honored to submit this testimony on behalf of the Eastern Paralyzed Veterans Association.

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    The Eastern Paralyzed Veterans Association (EPVA) is a not for profit organization dedicated to serving the needs of veterans who have incurred a spinal cord injury or disease and reside in New York, New Jersey, Pennsylvania and Connecticut. EPVA is a chapter of the Paralyzed Veterans of America. Since 1946, EPVA has been extensively involved in the field of barrier-free design, including the development of accessibility requirements for multifamily construction, so that our members and others with disabilities may lead full and productive lives. EPVA is submitting testimony in opposition to H.R. 2437, the Justice and Fair Housing Enforcement Act.

    H.R. 2437 would strip persons with disabilities of a basic civil right that was recognized by Congress over ten years ago; the right to access housing in the private sector without encountering stepped entrances and narrow doorways. The Fair Housing Amendments Act was signed into law in September of 1988, the non-discriminatory housing provisions became effective in March of 1989 and the new multi-family housing construction requirements applied to dwellings that were ready for occupancy after March 1991. Thus, providing builders a two-year opportunity to comply with the new building requirements. This opportunity was then extended an additional three months until June of 1991. Builders have been given ample opportunity to comply with the new construction requirements, which have been in effect for over eight years. Non-compliance on the part of builders, architects and anyone else involved in the construction process constitutes negligence and blatant disregard for the law.

COMMENTS

    H.R. 2437 would absolve from liability under the Fair Housing Amendments Act any building designed for first occupancy on or after March 13, 1991 up through date of enactment if that building was approved by ''relevant state or local building authorities as meeting the requirements of the applicable building code.'' In other words, if a builder obtained a building permit from state or local authorities, he or she could not be held liable for violations of the Fair Housing Amendments Act accessibility guidelines. State and local building authorities are not responsible for enforcing the Fair Housing Amendments Act.
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    However, many state and local jurisdictions have enforced building codes that meet or exceed the construction requirements of the Fair Housing Amendments Act. In EPVA's region, New York, New Jersey and the City of Philadelphia have made certain that their building codes incorporated the protections of the Fair Housing Amendments Act. Numerous other states have also amended their building codes to incorporate these protections.

    Most jurisdictions in our country reference one of the three model building codes developed by the model code groups for their construction regulations. All three model code groups—the Building Officials and Code Administrators International (BOCA), the Southern Building Code Congress International (SBCCI), and the International Conference of Building Officials (ICBO) amended their codes in the mid-nineties to reflect the Department of Housing and Urban Development's Fair Housing Amendments Act guidelines. Recently, these three groups joined efforts to create the International Building Code for 2000, which also includes the Fair Housing Amendments Act requirements. All of the model building codes noted reference the CABO/ANSI A117.1–1992 or ICC/NSI A117.1–1998 accessibility standard for their technical criteria. On October 25, 1999, the Department of Housing and Urban Development issued a report stating that it believes both editions of this standard are consistent with the Fair Housing Amendments Act.

    As building codes evolved to reflect the Congressional mandate, builders and developers followed suit, often spending considerable time and effort to change construction practices and revise site layouts and building plans to meet the requirements of the Fair Housing Amendments Act. National builders' organizations went to great lengths to provide training and information regarding the Fair Housing Amendments Act of 1988. Builders who have complied with the requirements of the Fair Housing Amendments Act are not assisted by H.R. 2437. This amendment would only benefit builders who have not complied, perpetuated discrimination and continued to deny access for people with disabilities to multi-family housing.
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    The Fair Housing Amendments Act of 1988 was enacted to provide equal access to housing for people with disabilities. The law accounted for the fact that existing housing and housing under construction or planned did not provide access by allowing almost three years for developers to incorporate the construction requirements into their projects. People with disabilities were patient when the law was passed, it is unconscionable to ask them to forgive blatant violations that have occurred over the past eight years.

    While this bill would adversely affect millions of people with disabilities seeking accessible housing, it would only benefit builders who have failed to comply with the law. Since 1991, when the new construction requirements became effective, the United States Department of Justice has filed twenty cases in federal court against housing developers. Sixteen of these cases were resolved by consent decree and four remain unresolved. An additional nine cases have been resolved out of court.

    Lastly, the Fair Housing Amendments Act and the Department of Housing and Urban Development's regulations introduced modest access requirements on covered multifamily dwellings, ''. . . resulting in features which do not look unusual and will not add significant costs'' (House Report No. 711, 100th Congress, 2nd Session). These features not only provide an immediate benefit to current tenants with mobility impairments, but promise to make the dwellings more habitable for others, as aging affects the agility and stamina of us all. The lack of front steps and the ability to add grab bars in the bath for better stability, while specified for persons with disabilities, is simply good design for everyone.

    In conclusion, the Eastern Paralyzed Veterans Association appreciates this opportunity to offer these comments since access to housing is very important to our members and to people with disabilities. For the already stated reasons, we oppose H.R. 2437.
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    Mr. CANADY. Mr. Myers.

STATEMENT OF PAUL E. MYERS, ASSISTANT DIRECTOR OF THE CITY OF CINCINNATI'S DEPARTMENT OF BUILDINGS AND INSPECTIONS, AND PRESIDENT OF THE BUILDING OFFICIALS AND CODE ADMINISTRATORS INTERNATIONAL INC., CITY OF ST. BERNARD AND THE VILLAGE OF EVENDALE, OH

    Mr. MYERS. Mr. Chairman, members of the committee, thank you very much for the opportunity to be here. I am with the City of Cincinnati as a code official, as well as two other jurisdictions in Ohio, much smaller. I see a lot of these issues that come before my desk routinely, and I can't agree more with the organizations that have been represented here thus far.

    As the current President of BOCA and a member of the ICC, the International Code Council, board of directors, we have made great strides in changing the way we do business. The parochial natures that have been a problem, frankly, for many of the builders, design professionals, as well as dealing with Federal legislation, have been removed. Some years ago we came up on the Hill and knocked on doors and talked to a lot of you and said, ''Why aren't you supporting the code process?'' The answer was almost unanimous, ''Because we can get three different interpretations, one from each of the model code groups.''

    That's unacceptable. We got the message. We agreed. The rest of the construction industry has been pounding on us as well. We got the message. We created the International Code Council. We now have that single document border-to-border, coast-to-coast that can be adopted. Within that is a mandate that says that all of these documents will be integrated and coordinated. There will be no conflicts. Within that are the accessibility guidelines, the latest and greatest.
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    If you take a different approach to the same issue, shift from an enforcement at the back end of construction, where the product is done, to a compliance issue, rather than an enforcement to compliance at the front end, what we are doing is design reviews from the design professionals, having preconstruction meetings with the builders, and in an integrated manner talking about means of egress that include accessibility guidelines; and we all win. It is far more efficient, and the affordability issues are built in versus the antiaffordable issues that will ultimately result. You can't build it and then rebuild it.

    If a different approach is taken, the end result will be beneficial to everyone, everyone—certainly the segment of the community that is being dealt with. That is the reason why we are trying to make this work efficiently.

    What you have heard is a lot of testimony on horror stories. We need to stop the horror stories. We need to go about the business of accessibility guidelines compliance at the front end by simply referencing the international building codes, mandate the legislation, but reference the international building codes; you will have accomplished it all.

    The monies that you would have then dealt with in enforcement redirect to the education. You have heard numerous folks talk about education needs. I can reiterate the same thing. Code officials need to be educated as well, but not in isolation. By that I mean, if you have means of egress, egress being all those animals that are involved with getting in and out of a building, from the parking lot, through the upper stories of the building, common places, corridors, stairwells, ramps, et cetera, everything that involves ingress and egress of a building, we have education about that.
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    Right now, accessibility is a different animal over here. They need to be integrated and coordinated so that when we are taught the proper means of egress, accessibility is just a mesh. It is not a separate animal. It is all part and parcel of the same thing.

    If you get back with the code officials, that will be shared with the design professionals and the builders. Now we are all on the same page, and we are not dealing with this and that. It is only one item. It is egress that has to serve the entire community.

    With that, I would accept any questions.

    Mr. CANADY. Thank you, Mr. Myers.

    [The prepared statement of Mr. Myers follows:]

PREPARED STATEMENT OF PAUL E. MYERS, ASSISTANT DIRECTOR OF THE CITY OF CINCINNATI'S DEPARTMENT OF BUILDINGS AND INSPECTIONS, AND PRESIDENT OF THE BUILDING OFFICIALS AND CODE ADMINISTRATORS INTERNATIONAL INC., CITY OF ST. BERNARD AND THE VILLAGE OF EVENDALE, OH

    My name is Paul E. Myers, and I am here today on behalf of the International Code Council, Inc., known as the ICC, to take the opportunity that the Justice in Fair Housing Enforcement Act has presented to speak out on the role of model building codes in implementing the objectives of federal civil rights laws, more specifically, the Fair Housing Act. I am a member of the Board of Directors of the International Code Council, and have more than 25 years of experience in local government code enforcement. I am currently serving as the President of Building Officials and Code Administrators International, Inc., or BOCA, one of the three founding organizational members of ICC.
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    The point I want to make here today is that the private sector, in developing model building regulations, and the state and local jurisdictions that adopt and enforce such regulations, are key partners in implementing the building accessibility provisions of the Fair Housing Act. We support the notion that state or local building code compliance, when such codes are based on one of the model codes, should be one option in which Fair Housing compliance can be assured.

1. The nation's model code organizations have responded to the public need for a single family of model codes that can be adopted consistently throughout the entire United States.

    Construction in the United States is a sophisticated process, governed by interrelated codes and standards that regulate building, plumbing, mechanical (heating, cooling, ventilation), energy, fire, accessibility, and other specialized aspects of construction. Codes writing is a dynamic process, involving constant interaction between the public and private sectors of the construction industry and consumers. Federal, state, and local governments, and individuals involved in codes writing and revision, represent the views of labor, management, manufacturers, design professionals, building owners, and trade associations. The regulation of building construction is largely accomplished through a document known as a ''building code.''

    In 1994, the International Code Council was established as a nonprofit organization with the dedicated purpose of developing a single set of comprehensive and coordinated model construction codes for the U.S. and beyond. The three founding members of ICC—Building Officials and Code Administrators International, International Conference of Building Officials (ICBO), and Southern Building Code Congress International (SBCCI)—are the organizations that, for the past 70-plus years, have developed and maintained regional codes used throughout the United States today. The nation's three model code organizations combined their more than 150 years of experience in writing comprehensive model building regulations in response to changing public needs.
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    While the regional code concept has served the country's needs well over the years, a single set of codes is in the best interest of the building community and the public at-large. The International Code Council, in essence, was formed in response to a need expressed by the building industry, manufacturers, architects, engineers, building operators and other key stakeholders, including the federal government and organizations such as the National Association of Home Builders. The goal of the ICC is to bring together the three model code organizations and others to work toward a common public interest of streamlining the building regulatory system. The International Code Council also promotes streamlining of the regulatory process through a single family of coordinated codes to bring consistency and compatibility to multiple layers of requirements that exist at the international, Federal, state, and local levels, such as accessibility requirements for multifamily dwellings.

2. In response to sweeping federal regulations for building design and construction for accessibility, the private sector has incorporated model language into the single family of codes which are intended to mirror the Act's minimum accessibility guidelines.

    Accessibility for persons with disabilities is an integral part of public health, safety, and welfare, which are the primary purposes of model building regulations. The model code organizations have acted to make the housing accessible in concert with the Federal efforts by incorporating provisions that meet or exceed the minimum Fair Housing accessibility guidelines.

    Accessibility provisions of model building codes had been in existence and available for adoption by state or local jurisdictions since the early 1960s.
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    I am here today to pledge the ICC's commitment to continue developing and helping jurisdictions throughout the entire United States adopt and enforce model building code provisions that provide an equivalent or greater level of accessibility as that required by the Fair Housing Act.

3. The federal government should harness the power of the estimated 40,000-plus state or local jurisdictions that adopt and enforce model codes in proactively implementing the building accessibility provisions of the Act.

    Even though it is only the federal government that is empowered to enforce the Fair Housing Act, the mechanism of building code adoption and enforcement at the state and local level should not be discounted in implementing the provisions of the Act. The inherent benefit of and difference between state and local code enforcement and enforcement of federal disability rights laws is the proactive or ''before-the-fact'' nature of building code enforcement that begins as ideas are put to paper, as opposed to the ''after-the-fact'' enforcement of federal law which often begins after brick is set to mortar.

    Enforcement of the Fair Housing Act building construction provisions is largely complaint-based and often occurs after construction has begun or been completed, whereas the enforcement process of accessibility provisions in state or local codes is automatically triggered with the application for a building permit. Opportunities for identifying and correcting deficiencies during the entire design and construction process exist under the code enforcement process. Although not directly related, this supplements the enforcement methods currently available under the Fair Housing Act.
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    The International Codes provide an opportunity for an estimated 40,000 state and local jurisdictions to adopt and enforce voluntarily a consistent set of accessibility provisions written in mandatory code language that are at least equivalent to the Fair Housing Act requirements. In fact, many states and local jurisdictions are now better informed on accessibility issues and are seeking to ensure that their building codes contain accessibility provisions that meet or exceed the federal guidelines. We are steps away from being able to take full advantage of this opportunity, thanks to the persistence of NAHB and Secretary Cuomo.

4. ICC has continued to work with HUD and other stakeholders to ensure that model code provisions for accessibility to multifamily dwellings are equivalent to the Act's minimum requirements.

    In May 1997, the Council of American Building Officials, now the International Code Council requested on behalf of BOCA, ICBO and SBCCI that HUD review the model codes to determine whether they meet or exceed the level of accessibility required by the Fair Housing Accessibility Guidelines. The scope of the review included model codes developed by each organization as well as the Draft International Building Code. The approved text of the 2000 International Building Code was submitted to HUD in August 1999.

    HUD has completed the review of these model code documents and released a draft report of its findings for public review and comment this Tuesday, October 26, 1999. The model code review project is scheduled to be completed by December 31, 1999.

    The ICC is committed to achieving the goal of having in the International Building Code accessibility provisions that meet or exceed the HUD Guidelines. We believe that the 2000 edition of the IBC has reached that goal, but in the event that there are any areas of our code that are determined by HUD to not provide at least the level of accessibility required by the guidelines, we are ready to propose the necessary revisions to the code to accomplish the our mutual objective.
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5. Adoption and enforcement of model codes that are deemed equivalent to the Act's minimum guidelines will benefit all and lead to increased accessible housing stock without reducing HUD's authority under the Act and without eliminating any of the remedies available to people with disabilities under civil rights laws.

    HUD's review of the model codes serves a number of purposes and will ultimately result in increased availability of the accessible housing stock. This review will prove mutually beneficial to HUD, the model code groups, state and local jurisdictions, architects, builders, developers and, more importantly, persons with disabilities.

    The document resulting from this review will be disseminated to state and local jurisdictions that are currently using model codes or will be adopting them in the future. These jurisdictions can then adopt and enforce these codes with the knowledge that the code provisions are at least equivalent to the Fair Housing accessibility provisions.

    Jurisdictions that adopt these codes will then be enforcing provisions that are at least equivalent to the Fair Housing requirements through their routine code enforcement activities. HUD will essentially be engaging the assistance of tens of thousands of code officials in state and local jurisdictions across the country with the ability to determine that buildings have achieved compliance with provisions that are at least equivalent to the Fair Housing provisions.

    State and local building code enforcement will increase the accessible housing stock far more effectively and proactively than the enforcement mechanism available under the Fair Housing Act without reducing HUD's authority to pursue enforcement under the law. Additionally, confusion and unpredictability for the industry will be substantially reduced as architects, builders and developers will encounter requirements written in traditional code language and can operate within the code enforcement system with which they are familiar. Most importantly, the protection enjoyed by people with disabilities under the Fair Housing Act will not be diminished. In fact, it is our belief that what will be diminished is the need to pursue those remedies and the need for HUD and the U.S. Department of Justice to expend resources responding to complaints of noncompliance.
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6. Use of model codes developed in the private sector achieves the objective of the National Technology Transfer and Advancement Act and is consistent with OMB Circular A–119.

    Eventually, the ICC would like to see the Fair Housing regulations revised to reference the codes developed by the private sector, consistent with the objectives of the National Technology Transfer and Advancement Act of 1995, PL 104–113 and OMB Circular A–119. The use of codes and standards developed by the International Code Council to implement Fair Housing is consistent with the Circular and is intended to achieve the following goals:

a. Eliminate the cost to the Government of developing its own standards and decrease the cost of goods procured and the burden of complying with agency regulation;

b. Provide incentives and opportunities to establish standards that serve national needs;

c. Encourage long-term growth for U.S. enterprises and promote efficiency and economic competition through harmonization of standards;

d. Further the policy of reliance upon the private sector to supply Government needs for goods and services.

    In closing, ICC encourages the reliance upon the private-sector model codes and the existing code enforcement mechanism of state and local governments in the United States to ensure the success of the Fair Housing Act. This serves and benefits the federal government and all stakeholders, including home builders and advocates alike.
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    Mr. CANADY. Mr. Buckland.

STATEMENT OF KELLY J. BUCKLAND, EXECUTIVE DIRECTOR, IDAHO STATE INDEPENDENT LIVING COUNCIL, BOISE, ID

    Mr. BUCKLAND. Good afternoon, Mr. Chairman and members of the committee. My name is Kelly Buckland. I am the Executive Director of the Idaho State Independent Living Council and a board member of the National Council on Independent Living. It is an honor for me to be here today to provide testimony on the, quote, ''Justice in Fair Housing Enforcement Act of 1999,'' unquote, and the important issues of discrimination, fair housing and people with disabilities.

    Anyone in the independent living movement will list housing as one of the most significant problems facing people with disabilities today. There is not enough of it. It is unaffordable and it is inaccessible.

    In 1995, the Idaho State Independent Living Council contracted with the Boise State University to conduct a needs-assessment of Idaho residents with disabilities. The study found that 18.74 percent of Idahoans have a disability as defined by the Americans with Disabilities Act; 44 percent of Idaho households contain a person, at least one person, with a disability; and 9 percent of those people have a mobility impairment which necessitates them either using a cane, crutches or a wheelchair.

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    The study performed by the council also asked people with disabilities to identify the two main barriers to them living independently. Idahoans with disabilities identified increased independence and social understanding and respect as the most important problem facing people with disabilities.

    I believe that if a similar study was conducted nationwide, the numbers would be fairly consistent with what we found in Idaho. Also, as we all know, the population of the United States is aging at a steadily increasing rate. Most people, as they age, do acquire a disability due to a stroke, broken hip, circulation problem, arthritis.

    However, those of us with the independent living movement don't need statistics to tell us that there is a real problem. We work with people every day who are forced to live in institutions or nursing homes because of a lack of accessible housing in the community. We know that people live on the streets because the homeless shelter is not accessible. We know that people are imprisoned in inaccessible housing and do not have the resources, financial or otherwise, to make housing accessible or to move. We know that people with disabilities are abused and remain in abusive situations because domestic violence shelters are not accessible.

    Here are some real examples of situations that people with disabilities have encountered in Idaho. The Local Center for Independent Living was contacted by Adult Protection regarding a homeless man who needed accessible housing. They were not able to find any accessible apartments. As a result, he was being screened for entry into a nursing home. His only choice was to move into a 24-hour attendant home rather than a nursing home, even though he only needed attendant care 3 hours a day.

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    Because of a hospitalization, a woman with a disability lost her housing. The hospital discharged her to a nursing home because she was not able to find an accessible housing alternative.

    A woman with multiple sclerosis lives in a fourplex, which was the most accessible housing available. When she moved in, she used a cane. Since that time, her MS progressed and she began using a wheelchair. The landlord would not allow her to add a ramp because he believed that it would lower his property value. The local CIL assisted her in trying to locate accessible housing.

    The first place she looked at told her that they had no accessible apartments because they were not set up to care for people like her. The second place she could not enter the rental office because there was no accessible pathway. She returned home and called them, inquiring about the accessibility of their apartments. They responded saying, they do not have any accessible apartments because they don't get any requests for them.

    One of the State Independent Living Council members contacted approximately 50 housing providers looking for accessible housing. He finally found a newer apartment complex that was not accessible, but would allow modifications to his apartment if he paid for them.

    After modifications, the apartment was not accessible. He could not close the bathroom door. He has to have someone help him do his cooking because the kitchen is inaccessible. He has to park in the fire lane because there are no accessible parking spaces by his building.
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    His manager brings the mail because the mail boxes are not accessible. He continues to live there today because he has been unable to find a better alternative.

    I also want to share with you a document that demonstrates the kind of discriminatory attitudes people with disabilities deal with every day, and it is attached to my testimony. Each member of the committee has it. Essentially, this policy, by one of the major property management companies, was developed this summer, and it basically says in order to use an electric cart or wheelchair, you have to get permission from the CEO of the company and the apartment manager; and if you abuse certain things that you are asked to do, then you will lose the privilege of using your electric cart or wheelchair.

    The pictures that I passed around are of some apartment buildings that we visited with Senator Craig's staff this summer, and you will notice that every single apartment complex had stairs in front of it.

    These attitudes, policies and discrimination are not the result of a lack of readily available information about the Fair Housing Act that some people want you to believe. Last week in Boise, there was a training seminar on accessibility requirements of the Fair Housing Act and not one single builder or developer attended the training, despite the fact that they had received invitations. This lack of attendance of builders and developers has been typical at these types of workshops held over the past several years.

    The name of this bill should be changed to the, quote, ''Injustice in Fair Housing Enforcement Act of 1999.'' having steps in front of every apartment in a complex is the same as hanging up a sign that says, no people with wheelchairs are allowed to live here.
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    Thank you, Mr. Chairman, and members of the committee. I will stand for any questions.

    Mr. CANADY. Thank you, Mr. Buckland.

    [The prepared statement of Mr. Buckland follows:]

PREPARED STATEMENT OF KELLY J. BUCKLAND, EXECUTIVE DIRECTOR, IDAHO STATE INDEPENDENT LIVING COUNCIL, BOISE, ID

    Good afternoon Mr. Chairman and members of the committee. My name is Kelly Buckland and I am the Executive Director of the Idaho State Independent Living Council and a board member of the National Council on Independent Living. It is an honor for me to be here today to provide testimony on the ''Justice in Fair Housing Enforcement Act of 1999'' and the important issues of discrimination, fair housing and people with disabilities.

    Anyone in the independent living movement will list housing as one of the most significant problems facing people with disabilities today. There's not enough of it. It is unaffordable. And it is inaccessible.

    In 1995 the Idaho State Independent Living Council contracted with Boise State University to conduct a needs assessment of Idaho residents with disabilities. The study found that 18.74 % of Idahoans have a disability as defined by the Americans with Disabilities Act, 44 % of Idaho households contain at least one person with a disability, and that 9 % of those people have a mobility impairment which necessitated them using either a cane, crutches, or a wheelchair.
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    The study performed by the council also asked people with disabilities to identify the two main barriers to them living independently. Idahoans with disabilities identified increased independence and social understanding and respect as the most important problem for people with disabilities. I believe that if a similar study was conducted nation wide, that the numbers would be fairly consistent with what we found in Idaho.

    Also, as we all know the population of the United States is aging at a steadily increasing rate. Most people, as they age, acquire a disability due to a stroke, broken hip, circulation problems, arthritis, etc.

    However, those of us in the independent living movement don't need statistics to know there's a real problem. We work with people every day who are forced to live in institutions, or nursing homes, because of a lack of accessible housing in the community. We know that people live on the streets because the homeless shelter is not accessible. We know that people are imprisoned in inaccessible housing and do not have the resources, financial or otherwise, to make their housing accessible, or to move. We know that people with disabilities are abused and remain in abusive situations, because domestic violence shelters are not accessible.

    Here are some real examples of situations that people with disabilities have encountered in Idaho:

1) The local Center for Independent Living (CIL) was contacted by Adult Protection regarding a homeless man who needed accessible housing. They were not able to find any accessible apartments. As a result, he was being screened for entry into a nursing home. His only choice was to move into a 24-hour attendant home, rather than a nursing home, even though he only needed to use an attendant three hours a day.
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2) Because of a hospitalization a woman with a disability lost her housing. The hospital discharged her to a nursing home because she did not have an accessible housing alternative.

3) A woman with multiple sclerosis lived in a four-plex which was the most accessible housing available. When she moved in she used a cane. Since that time, her MS progressed and she began using a wheelchair. The landlord would not allow her to add a ramp because he believed it would lower his property's value. The local CIL assisted her in trying to locate accessible housing. The first place she looked at told her they had no accessible apartments because they were not set up to care for people like her. The second place, she could not enter the rental office because there was no accessible pathway. She returned home and called them, inquiring about the accessibility of their apartments. They responded, saying we do not have any accessible apartments, we do not get any requests for them.

4) One of our State Independent Living Council members contacted approximately 50 housing providers looking for accessible housing. He finally found a newer apartment complex that was not accessible but would allow modifications to his apartment if he paid for them. Even after modifications the apartment was not accessible. He can not close the bathroom door. He has to have someone help with cooking because the kitchen is inaccessible. He has to park in the fire lane because there are no accessible parking spaces by his building. His manager brings the mail because the mailbox is unreachable. He continues to live there because he has not been able to find a better alternative.

    I also want to share with you a document that demonstrates the type of discriminatory attitudes people with disabilities deal with every day in their search for accessible housing. This policy was developed this summer by one of the major property management companies in Idaho. I have removed the name of the company. I know that this document does not deal with the accessibility requirements of the Fair Housing Act, however, it does demonstrate the attitude of rental housing owners and property managers.
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    Last August Kim McCulley and Shirleane Hays, with the local Center for Independent Living, SILC Member Jeff Garro and myself took Senator Craig's staff members Lisa Kidder and Ken Bergess on a search for an accessible apartment. We acted as if we were a person with a disability who just got hired by the Center and started looking for an apartment in close vicinity to the Center. We looked at apartment complexes that were built in 1992, 1994, 1996 and 1998. Someone using a wheelchair could not have gotten in the front door of any of the apartments in the complexes that we looked at because of steps or stairs. At one of the complexes you either had to go upstairs or downstairs to enter any of the apartments.

    These attitudes, policies and discrimination are not the result of a lack of readily available information about the Fair Housing Act as some people want you to believe. Last week in Boise there was a training seminar on the accessibility requirements of the Fair Housing Act and not one single builder or developer attended the training, despite the fact that they received an invitation. This lack of attendance of builders and developers has been typical at these types of workshops held over the past several years.

    The name of this bill should be changed to the ''Injustice in Fair Housing Enforcement Act of 1999.'' Having steps in front of every apartment in a complex is the same as hanging up a sign that says no people who use wheelchairs are allowed to live here.

    Thank you Mr. Chairman and members of the committee. I will stand for any questions.

    Ms. Kitay.
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STATEMENT OF THERESA L. KITAY, PARTNER, COUGHLIN & KITAY, P.C.

    Ms. KITAY. Chairman Canady, members of the subcommittee, I am Terry Kitay, a member of the National Multihousing Council and a partner with the law firm of the Coughlin & Kitay, P.C. It is my pleasure to testify on the Justice in Fair Housing Enforcement Act, H.R. 2437, introduced by Representative Walter Jones.

    My area of practice includes accessible design and construction litigation. In that capacity, I have represented properties around the country involved in accessible design litigation with the Department of Housing and Urban Development, the Department of Justice, private enforcement entities funded by HUD, State attorneys general and private parties.

    Previously, I was a regional counsel in HUD's Atlanta field office, and part of my responsibility included accessible design cases; so I believe I have a unique position from which to view the evolution of accessible design enforcement.

    I am here today on behalf of three principal trade associations representing the private apartment and seniors housing industry—the National Multihousing Council, the National Apartment Association and the American Seniors Housing Association. Jointly, these organizations operate a Federal legislative program and provide a unified voice for the private apartment and seniors housing industries.

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    The multifamily and seniors housing industries have repeatedly gone beyond what the law requires to make accessible housing available to millions of Americans. That includes the establishment of the National Apartment Accessibility Clearinghouse, a toll free number where anyone can call and obtain information about accessible housing nationwide.

    But that housing delivery system must cope with an agency that, instead of being a partner, has taken an adversarial enforcement stance. Having encouraged developers and architects to use one design standard for most of the 1990's, the agency today applies a more restrictive requirement in its enforcement actions.

    HUD's actions make it difficult to take the agency at its word when it asks to be a business partner with the industry in the delivery of multifamily and seniors housing. The Constitution Subcommittee's leadership in holding today's hearing on this important, but potentially emotional issue is a good-faith opportunity to begin to remedy that problem.

    I have three points to make today. Number one, HUD's enforcement policy is at odds with its own design and construction guidance. When it passed the Fair Housing Amendments Act in 1988, Congress intended to place modest accessibility requirements on covered multifamily dwellings. In implementing that instruction, HUD promulgated the Fair Housing Accessibility Guidelines in 1991, making clear that the act itself and not the guidelines set the minimum accessibility requirements.

    HUD wrote at length that the guidelines were nonmandatory and that builders and developers were free to use any reasonable design consistent with the language of the act. HUD reiterated its policy that the guidelines are not minimum standards, in the 1998 release of its revised design manual. It is the scope of HUD's reasonable design policy that we are addressing today.
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    In my experience, I can tell you HUD's stated policy of reasonable design with nonmandatory guidelines is not being followed by HUD's enforcement personnel and their agents. Instead, the guidelines or the American National Standards Institute provisions, another nonmandatory safe harbor, are being applied as minimum standards.

    On a regular basis, the architects and developers that are my clients are asked to justify the smallest variance from the guidelines, or ANSI, in enforcement actions with HUD, DOJ and their agents. I have some examples for you of how the accessible design requirements of the Fair Housing Act are being enforced today.

    First, HUD and DOJ officials have insisted that any client who did not use the guidelines or ANSI standards would have the burden of proof that some other standard of accessibility was consulted during construction. This position is well beyond the statutory language and is an incorrect statement of the law. In conciliation discussions on numerous cases, HUD has insisted on strict ANSI compliance with regard to slopes, despite its own regulatory definition of an accessible route as, quote, ''a continuous, unobstructed path connecting accessible elements in spaces in a building or within a site that can be negotiated by a person with severe disability using a wheelchair and that is also safe and usable by people with other disabilities.''

    To my mind, there is a vast difference between this definition of an accessible route which focuses on usability and ANSI's strict and precise sloping requirements.

    In other words, it should be reasonable for a walkway to be a compliant, accessible route under the language of the act without precisely conforming to the 8.33 slope found in ANSI.
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    My second point is that HUD is more interested in bringing enforcement actions than reducing uncertainty during a property's design phase. HUD has defined access and accessible design activities largely on the number of enforcement actions brought under the act, instead of meeting an objective everyone can agree on, reducing confusion during the design phase and thereby providing greater accessibility in multifamily housing.

    HUD should be devoting more attention to the letter and spirit of its mandate under the Fair Housing Act, to obtain the industry's advice and counsel about the design and construction requirements.

    One story may illustrate what developers faced when trying to understand the requirements, as late as the mid-1990's.

    Well, I see I am running out of time and won't have time to tell you that story right now, but I did want to take a moment and let you know my third point, and that is that this bill raises significant issues worthy of discussion and should be pursued, but it is our opinion that HUD can move in the right direction without legislation. Thank you.

    Mr. CANADY. Thank you very much.

    [The prepared statement of Ms. Kitay follows:]

PREPARED STATEMENT OF THERESA L. KITAY, PARTNER, COUGHLIN & KITAY, P.C.

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    Chairman Canady, Ranking Member Watt, and Members of the Subcommittee:

    I am Theresa Kitay, a member of the National Multi Housing Council and a partner with the law firm of Coughlin and Kitay, P.C. It is my pleasure to testify on the Justice in Fair Housing Enforcement Act, HR 2437, introduced by Representative Walter Jones.

    My area of practice includes accessible design and construction litigation. In that capacity I have represented properties around the country involved in accessible design litigation with the Department of Housing and Urban Development (HUD), the Department of Justice (DOJ), private enforcement entities funded by HUD, state attorneys general, and private parties. Previously, I was a regional counsel in HUD's Atlanta field office with responsibility for accessible design cases, so I believe I have a unique position from which to view the evolution of accessible design enforcement. Accompanying me is Jay Harris, Vice President of Property Management with the National Multi Housing Council/National Apartment Association/American Seniors Housing Association Joint Legislative Staff.

    I am here today on behalf of three principal trade associations representing the private apartment and seniors housing industry: the National Multi Housing Council, the National Apartment Association, and the American Seniors Housing Association. NMHC/ASHA represent the nation's leading firms participating in the multifamily rental and seniors housing industry. Our combined memberships are engaged in all aspects of the development and operation of apartments and seniors housing, including ownership, construction, finance, and management. The National Apartment Association is the largest national federation of state and local associations of apartment industry professionals including developers, owners, investors and property managers. NAA is comprised of 150 affiliates and represents more than 26,000 professionals who own and/or manage more than 3.3 million apartments. NMHC/NAA/ASHA jointly operate a federal legislative program and provide a unified voice for the private apartment and seniors housing industries.
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    NMHC/NAA/ASHA believe that accessible design is not just the right thing to do—it is good business, too. Let me give you one example. NAA created the National Accessible Apartment Clearinghouse (NAAC), a free, national apartment locator service for disabled individuals seeking rental apartment housing. Anyone can call an 800 number—800–421–1221—to find out about the availability of accessible apartments in more than 150 markets nationwide, with detailed information about accessibility features at those properties. NAAC maintains a wide range of information about the residence, including its proximity to public transportation, whether grab bars are provided in the bathroom, kitchen and bathroom specs, and parking availability. NAAC receives over 100 calls a week from individuals with disabilities looking for accessible housing and there is never a fee for its services. NAAC is a public service program sponsored by the National Apartment Association, National Multi Housing Council, American Computer Software, Fannie Mae Foundation, and For Rent magazine. The Clearinghouse can be reached on the Web at www.nmhc.org or www.aptsforrent.com/naac.

    The U.S. apartment industry provides homes for approximately 15 million families and individuals nationwide, representing the full spectrum of America's population. Apartments (i.e., construction of five or more units) account for about 15 percent of the entire housing stock. Rental revenues from apartments total more than $75 billion annually, and management and operation of apartments are responsible for approximately 400,000 jobs. Construction of apartment communities has added roughly 200,000 new apartment homes in each of the past two years. The value of the new construction has averaged more than $16 billion annually, providing jobs to more than 200,000 workers. Among the owners of apartment communities are individuals, partnerships, real estate investment trusts, corporations, and nonprofit organizations.
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    I have three points to make today in my testimony on HR 2437:

 I. HUD's enforcement policy is at odds with its own design and construction guidance.

 II. HUD is more interested in bringing enforcement actions than reducing uncertainty during a property's design phase.

 III. HR 2437 raises significant issues worthy of discussion and should be pursued, but HUD can move in the right direction without legislation.

I. HUD's enforcement policy is at odds with its own design and construction guidance

    When it passed the Fair Housing Amendments Act in 1988, Congress intended to place ''modest accessibility requirements on covered multifamily dwellings.''(see footnote 1) In implementing that instruction, HUD promulgated the Fair Housing Accessibility Guidelines in 1991, making clear that the Act, not the Guidelines, set the minimum accessibility requirements. HUD wrote at length that the Guidelines were non-mandatory:

    ''The Department has not categorized the final Guidelines as either performance standards or minimum requirements. The minimum accessibility requirements are contained in the Act. The Guidelines adopted by the Department provide one way in which a builder or developer may achieve compliance with the Act's accessibility requirements. . . . Builders and developers should be free to use any reasonable design that obtains a result consistent with the Act's requirements.''(see footnote 2)
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    HUD reiterated its policy that the Guidelines are not minimum standards in the 1998 release of its revised Design Manual. There, the agency stated that the Guidelines

''are not mandatory, but are intended to provide a safe harbor for compliance with the accessibility requirements of the Fair Housing Act.''(see footnote 3)

    But in my experience, I can tell you that policy is not being followed by HUD and its enforcement agents. Instead, the Guidelines (or the American National Standards Institute 117.1 (ANSI) provisions, another non-mandatory safe harbor) are being applied as minimum standards. On a regular basis, the architects and developers that are my clients are asked to justify the smallest variance from the Guidelines or ANSI. Let me give you some of the more egregious examples of how the accessible design requirements of the Fair Housing Act are being enforced today:

 HUD and DOJ officials have insisted that any client who did not use the Guidelines or ANSI standards would have the burden of proof that some other standard of accessibility was consulted during construction. This position is well beyond the statutory language and is an incorrect statement of the law.

 My clients have repeatedly been cited by HUD, HUD-funded enforcement agents, and DOJ for fair housing ''violations'' stemming from the absence of optional standards for centering bathroom and kitchen fixtures that were raised for the first time in the Design Manual released by HUD in 1996. Obviously, this includes properties constructed well before 1996.
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 In conciliation discussions on numerous cases, HUD has insisted on strict ANSI compliance with regard to slopes, despite its own regulatory definition of an ''accessible route'' as ''a continuous unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by a person with severe disability using a wheelchair and that is also safe and usable by people with other disabilities.''(see footnote 4) To my mind, there is a vast difference between this definition of an accessible route, which focuses on ''usability,'' and ANSI's strict and precise sloping requirements. In other words, it should be ''reasonable'' for a walkway to be a compliant ''accessible route'' under the language of the Act without precisely conforming to the 8.33% slope found in ANSI.

 Walkways built to meet the same local code standards that HUD or DOJ would contend do not comply with the Fair Housing Act—because they do not meet ANSI standards—are found on comparable, contemporaneously constructed properties built with HUD funds, and presumably designed and constructed under HUD's supervision. In fact, some of my clients who build these HUD-funded properties have had those properties be the subject of HUD investigations, despite the fact that the client relied on the approval from the HUD architect supervising the project!

II. HUD is more interested in bringing enforcement actions than reducing uncertainty during a property's design phase

    HUD has defined success in its accessible design activities largely on the number of enforcement actions brought under the Act, instead of meeting an objective everyone can agree on: reducing confusion during the design phase and thereby providing greater accessibility in multifamily housing. HUD should be devoting more attention to the letter and the spirit of its mandate under the Fair Housing Act to obtain the industry's advice and counsel about the design and construction requirements.(see footnote 5) Moreover, since more than 95% of the country's apartment operators are small businesses, accessible design is an area that cries out for HUD to meet its obligation under the Small Business Regulatory Enforcement Fairness Act (SBREFA) to provide ''informal small entity guidance'' by ''answer[ing] inquiries by small entities concerning information on, and advice about, compliance with such statutes and regulations, [and] interpreting and applying the law to specific sets of facts supplied by the small entity.''(see footnote 6)
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    One story may illustrate what developers faced when trying to understand the requirements in the mid-'90s. One developer client of mine and his architect began studying what was available in 1990 but still had questions after the Guidelines were released that needed to be resolved before construction began on a new property. In calling HUD, the professional was referred to four different HUD offices, all of which told him they had no details about the design and construction standards, but were more than happy to help him file a fair housing complaint! Eventually, HUD referred this client to the Pacific Disability and Business Technical Assistance Center, which told the client they had been hired by HUD to publicize the details of the ''accessibility laws.'' By 1994, all this client had received from this HUD-funded group was a copy of the Code of Federal Regulations concerning the Architectural and Transportation Barriers Compliance Board, which has nothing to say about the Fair Housing Act. In short, developers building for much of the 1990s really had to fashion their own solutions, because HUD had not taken seriously its responsibility to educate and provide technical assistance directly to the industry on design and construction requirements, apparently concentrating on funding testing activities of advocacy groups instead. By recognizing that confusion and the frustration of developers trying to comply with the law as it now exists, HR 2437 is an important step in the right direction.

    HUD's emphasis on enforcement is well known:

 HUD has a stated performance goal for fair housing enforcement: to double the number of fair housing enforcement actions brought in the second term of the Clinton Administration.(see footnote 7) Evaluating performance based on goals or quotas is exactly the sort of standard that Congress criticized and outlawed last year for the IRS(see footnote 8) and OSHA.(see footnote 9) HUD knows it's wrong—that's why the agency recently agreed to the industry's request to stop awarding FHIP funds based on a quota or goal of how many suits the grantee brings.(see footnote 10) But enforcement quotas still drive the Office of Fair Housing and Equal Opportunity's performance objectives.
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 From 1996 to 1998, HUD explicitly reserved the right to sue design and construction professionals who followed the agency's own advice in its Design Manual. On the front cover of the Manual was the following disclaimer: ''[N]o guarantee of the accuracy or completeness of the information or acceptability for compliance with any mandatory requirement of any code, law, or regulation is either offered or implied.''(see footnote 11) Only after Congress became involved did HUD withdraw, revise, and re-release a new manual—without the disclaimer.

 The use of testers applying the wrong standard has been an example of the agency's overreaching enforcement. In my experience, HUD spent $139,000 to fund a private group to bring 27 accessible design lawsuits in the Atlanta area in 1996. The majority of the complaints were dismissed because the group applied the wrong standard, testing apartments above the ground floor that are not covered by the Act, or alleging violations in areas not within the scope of the Act's accessibility requirements.(see footnote 12) Respondents incurred many thousands of dollars to defend against these frivolous claims.

III. HR 2437 raises significant issues worthy of discussion and should be pursued, but HUD can move in the right direction without legislation

    The Justice in Fair Housing Enforcement Act (HR 2437) is an important step toward fully recognizing that the quality of information available today about federal accessibility requirements is much better than the information available through most of the '90s. The bill recognizes that the many accessibility provisions of state and local building codes—not only the Guidelines—can be ''reasonable design'' that meets the language of the Act. The bill focuses HUD enforcement activities on properties built after the disclaimer-free 1998 Manual was released, an improvement over the current enforcement that appears to evaluate compliance regardless of the quality of information available at the time. With appropriate modifications, HR 2437 is a bill NMHC/NAA could support. We would be happy to work with staff to further develop this legislation.
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    Additional steps can be taken to improve the scope of accessibility and availability of covered multifamily properties.

 HUD should synchronize its enforcement activities with the standards of the International Building Code (IBC 2000) and current state and local building codes that provide a wide range of accessibility features. The IBC 2000, the first uniform building code, contains accessibility features that reflect the work of thousands of building professionals and advocates over many years. Yet code bodies' attempt to provide a uniform standard for construction in the IBC 2000 is compromised by HUD's insistence on its own interpretation of the accessibility features in the Fair Housing Act. Were HUD to interpret its ''reasonable design'' policy to reflect the accessibility features found in state and local building codes, the agency could remove design-phase uncertainty and gain the benefit of the review of thousands of code officials in its enforcement process using a standard that conforms to the language of the Act. Rather than stand alone insisting on a unique interpretation of accessibility requirements, HUD should synchronize its enforcement activities with the IBC 2000 and existing state and local codes. HUD's release this week of its long-awaited model building code analysis may, upon review, prove to be a positive step to demonstrate the agency's good faith in synchronizing its policy of ''reasonable design'' with the building codes that guide design and construction around the country.

 Implementing the agency's stated reasonable design policy, HUD should instruct agency and agency-funded enforcement personnel to specifically demonstrate that a respondent's design solution was not a reasonable interpretation of the requirements in the language of the Act before filing a complaint. Neither the Guidelines nor ANSI should be referenced as a minimum standard of performance. Enforcement actions should take into account the nature of interpretive guidance available from HUD at the time of design and construction of the particular building, and the extent of accessibility features that were provided in the property.
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 Meeting its SBREFA mandate, the agency should provide timely and reliable technical assistance in response to specific questions from design and construction professionals seeking to build or voluntarily retrofit their properties. Also, the agency has been instructed in the HUD FY 2000 Appropriations Act (P.L. 106–74) to directly educate code officials, architects, and covered professionals about the requirements of the Act. A model might be DOJ's program for providing the public with technical assistance for compliance with the ADA.

 Explore with the industry incentives that can increase accessibility on properties built in the 1990s. Structured with proper industry input, these voluntary incentives can be a more cost-effective way to increase property accessibility than the current slow enforcement-focused approach.

    Thank you Chairman Canady, Congressman Watt, and Members of the Subcommittee for this opportunity to communicate our views on this important issue.

    Mr. CANADY. I appreciate the testimony that you all have provided.

    I will now recognize the gentleman from Massachusetts for 5 minutes.

    Mr. FRANK. Thank you, Mr. Chairman. Let me start with Mr. Tipton.

    Are you endorsing this bill?
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    Mr. TIPTON. We are not—NAHB has not taken it through their policy, so NAHB has not taken a position on the bill as yet.

    Mr. FRANK. Ms. Kitay, I gather you are not either, endorsing the bill?

    Ms. KITAY. We think it raises significant issues worthy of discussion.

    Mr. FRANK. I know. You just said that. I hope I didn't ask you to repeat yourself. Do you endorse the bill?

    Ms. KITAY. With some changes.

    Mr. FRANK. You don't endorse the bill as written?

    Ms. KITAY. Not as written.

    Mr. FRANK. Have you got changes that you could submit to us?

    Ms. KITAY. We have some suggestions for approaches that could be taken, yes.

    Mr. FRANK. I must tell you—I hope you won't be offended. But I am always struck, people talk about politicians not liking to give direct answers to questions they find uncomfortable; but the longer I am here, the more I find that to be a shared trait that other people have as well.
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    I would say a lot of people have said nice things about this bill, but I haven't heard anybody say they support it, which seems to be reasonable because it does seem this bill goes much further than even the testimony which support.

    Mr. Tipton, you said, for instance, you are not trying to let anybody off who consciously violated it. Well, the bill wouldn't let off someone who consciously violated it. The bill, as written, would mean even if you could show that someone consciously violated it, they would be left off. I think it is useful that we have it as a discussion.

    I would say, Mr. Chairman, seriously, I am very pleased with this range of witnesses. I think you and Mr. Watt did a good job of getting some witnesses, and I look forward to this as the beginning of a discussion.

    I will say I am a little surprised at some of the complaints that I am getting because I have been, since this bill was adopted, and before, a member of both the Housing Subcommittee of the Committee on Banking and of the Judiciary Committee, often although not always on this subcommittee; and I had not heard previously people coming to me, frankly, from the realtors or the home builders and everybody else saying, look, you have got to do a better job of publicizing this requirement. So to the extent there has been a failure here, it is a shared failure of the agency and of everybody else.

    I think the one thing I would want to say is that to the extent that the other entities have failed, the people who are the intended beneficiaries of this legislation should not be penalized.
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    Now, having said that, I would say if HUD is not taking into account some of this in the enforcement, that is a mistake. Particularly, I would say, where the FHA might have given someone an approval, where some entity of HUD gave people approval, I think that is reasonable; and that certainly means enforcement should be nonpunitive, but it doesn't mean that we should say to a group of people whom Congress felt—and this is 1988, so it was signed by President Reagan, I assume. I don't remember that we passed this one over his veto, so President Reagan signed this bill.

    I don't think it is reasonable to say to the people who were the intended beneficiaries, by the way, we didn't do a good enough job of publicizing it, so forget about it. We are starting all over again and all the housing that has been built since then, you get no benefit from.

    I would say there does seem to be one issue, Mr. Tipton, where I might be inclined to agree with you, but sadly five members of the Supreme Court don't. I think it was you who said, well, why don't we just mandate that this be enforced through the building codes like wetlands. It is my impression that the United States Supreme Court has turned against us on this. If we can't mandate a sheriff to help us check into somebody's record who owns—wants to buy a gun, I doubt the Supreme Court—this is part of the problem. I mentioned that to cite what I think are the shortcomings in the current Supreme Court majority's opinion. I think your suggestion makes a lot of sense, but we are debarred from doing it.

    So I would just say, Mr. Chairman—I am pleased to say, we have an issue.
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    I guess one other thing I did want to ask Ms. Kitay, Mr. Tipton. One argument of Mr. Tozer apparently was, some people didn't know about it. That is clear; they obviously didn't.

    But were the associations publicizing that, Mr. Tipton? Were the Home Builders publicizing the existence of this law?

    Mr. TIPTON. We restored seminars and we have continued to do that since 1991 and——

    Mr. FRANK. The problem I have there is, though, that does conflict a little bit with the notion that nobody knew about it. Did people not read your stuff? It happens to me sometimes. There are certain things they don't pay attention to.

    Mr. TIPTON. Quite the contrary. It is not in conflict at all. When we go to get a building permit, we go to get a building permit and we take our plans and we get approved. When they approve them, there are other laws called the ADA and other handicapped accessible laws that we comply with. We were all thinking that we were complying with all of the fair housing laws at the same time we complied with ADA and all the fair housing laws of the State.

    Mr. FRANK. Were the Home Builders telling people specifically about this law, the Fair Housing Act Amendments of '88?

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    Mr. TIPTON. Yes.

    Mr. FRANK. I think that is relevant, because it weakens the argument that this was passed and nobody knew about it.

    Mr. TIPTON. I think it strengthens the argument because obviously HUD just did a study that says 77 percent of the people still don't know about it.

    Mr. FRANK. But the Home Builders were telling people about it.

    Mr. TIPTON. Obviously we didn't do that good a job to be able to do it, but we did our best.

    Mr. FRANK. I appreciate that.

    Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.

    Mr. FRANK. I thank the chairman; I can do it in 1.

    I appreciate this. The fact is that the associations were there. I do think we ought to be clear. In terms of the enforcement, I would hope HUD would take into account what confusions might have been, certainly. Absent some showing of a deliberate defiance, I wouldn't want to see anything that was punitive.

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    On the other hand, to say that all the housing that has been built is not going to be made accessible I think would be very unfair to the people who are supposed to be there. And it does seem to me that particularly people who believe in the private sector role, it is not solely the responsibility of HUD to publicize the existence of this law. The private groups do have such a responsibility.

    I think they tried to do it, and we certainly don't want to pass a law that would repeal the old principle that ignorance—literally that ignorance of the law is no excuse. This is a bill that essentially says, ignorance of the law is an excuse. It is certainly something to be taken into account in deciding how you approach this, but not, I think, a reasonable thing to do. Of course, I cross the board.

    Thank you, Mr. Chairman.

    Mr. CANADY. Thank you, Mr. Frank.

    Let me begin by expressing my agreement with the point you make about ignorance of the law not being an excuse. I think that is the principle that we generally operate under. I think that makes sense. I also want to express my agreement with your sentiment that where there is a failure to comply, because there was a misunderstanding or a lack of knowledge, and particularly where we are dealing with the people who are small businesses, who typically rely on other professionals for their plans, I think punitive action against people in that situation who were not doing anything willful in violation of the law would trouble me. And when someone such as Mr. Tozer, I think, tells of his experience, I am very sympathetic to his efforts and the situation he finds himself in. I don't know that the objectives of this law are really served well or that the public interest is served well by coming down hard on somebody like Mr. Tozer.
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    I don't think my time has expired yet.

    I think we are really pretty much agreeing in our overall outlook on this.

    Mr. FRANK. I think the clock decided that the notion of you and I agreeing was so good that it would cut you off before you got a chance to——

    Mr. CANADY. I am out of control here today. Let me ask a couple of questions.

    When we talk about reliance on design professionals, do the design professionals have any—I am talking about architects or engineers that create the plans that someone like Mr. Tozer takes in to get approved, do they have any liability under the law, under the Federal law for anything they do? And let me also ask, do they have any liability to Mr. Tozer; if he is subject to an enforcement action, can he go back against those design professionals?

    Maybe Ms. Kitay would be the best person to try to address that.

    Ms. KITAY. I can tell you, Chairman Canady, that the Justice Department and HUD certainly believe architects and engineers have liability under the law, because they are very regularly made parties to complaints in litigation. I think they have a good basis for doing that.

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    There are issues involving statutes of limitations that are still making their way through the courts. And certainly my clients tend to be the developers, although I have represented some architects, and they certainly would like to believe that they could rely on their architects, and to the extent the architect or engineer doesn't do a job in compliance with the law, that they can go back against that professional for some kind of error and omission.

    Mr. CANADY. You don't know of particular cases arising under this law where that has been litigated to a conclusion?

    Ms. KITAY. I am sorry, Chairman. I am trying to think right now. I believe there is a case that at least has gotten past the motion to dismiss phase where an architect is involved. There is not a whole lot of reported litigation in this area, because it is still so new.

    Mr. CANADY. Mr. Malleris, I appreciated your testimony, along with the testimony of everyone else here. I think you come to this with a unique perspective as someone who kind of looks at it from both sides of the fence. But what do you think about a situation—and I am not trying to just single out Mr. Tozer here—such as here where you have got someone who is relying on a professional and, I assume, acting in good faith, just going through the process the way he has always gone through the process?

    And it also—remember, take this back some years ago when maybe there was not as much knowledge about this law even as there is now. Do you think that it is a wise use of enforcement resources to really focus on someone who has not acted in bad faith?

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    I agree with your statement that if people are acting in bad faith, if they are just ignoring these requirements willfully, I think that action should be taken against them. This is the law and people should comply with it. I think we need to figure out ways to facilitate that, but I absolutely agree with that. In cases where people have not acted in willful defiance of the law, don't you feel that it makes sense not to focus enforcement resources in pounding on those people?

    Mr. MALLERIS. In responding to your question——

    Mr. CANADY. I will give myself a couple of additional minutes.

    Mr. MALLERIS. I don't want to be cut off with the red light either.

    In responding to your question, I do believe that for the smaller developers, and I, as such, rely on architects, engineers, other people for their level of expertise because I will admit I don't know everything, okay? So if I don't know everything, I make sure that I have people surrounding me that do have the answers, that I can receive that assistance, because that is being a responsible developer and I have that responsibility, so—if I have people that aren't following things or have that knowledge, so I think that is key.

    So for somebody—and, again, Mr. Tozer's situation—relying on that expertise is important, and I do feel that they are responsible for not providing and learning and understanding because again, quote, unquote, the American Institute of Architects, the other architectural organizations, they provide training.
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    I have been asked to speak around the country on this issue and how to do it, and I have been to an AIA conference doing training, assisting in that process. So I do believe there is a certain level of expertise between them and other people that have to keep up with it whether it is BOCA, whether it is the State accessibility codes, or whether it is the Federal Fair Housing, and whether there are changes in electricians as far as electricity and changes in requirements to increase safety, fire safety and those items.

    So I do believe that there are some—for the smaller developer, that other people have some responsibility. And I do believe that it is important that you set it up on a sliding basis or amenable means to take some corrections to make that achievement, because if there is an electrical problem or a plumbing problem, that is going to have to be corrected no matter who is involved and make those adjustments.

    So I am just using that as an example, some of the other areas along with it.

    Mr. FRANK. Mr. Chairman, I did want to make the distinction. I hope we can still agree on it which punitive action certainly should be avoided, but that doesn't necessarily mean that you wouldn't take corrective action to increase the supply, because that has a purpose which was to get the supply of housing.

    So there are times when you might think that corrective action was required, but not punitive action.

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    Mr. CANADY. I have some more questions. Would you like to go on the second round?

    Mr. FRANK. Go ahead.

    Mr. CANADY. I recognize myself for another 5 minutes.

    Let me ask Mr. Myers and others that might want to chime in on this: Do you think that there are things that we could do that would help ensure better compliance from the start, so that facilities are being built that are in compliance, and we don't have this retrofitting issue and the after-the-fact effort to bring units into compliance?

    I think everyone should agree that it is in everybody's interest to ensure that the units are built initially in a way that complies with the law; obviously, that should go without saying. Do you think there are things that we can do in the Congress that will help ensure that that happens?

    Mr. MALLERIS. In my initial response that—I will deal with two issues: The folks that may not have followed—whether from ignorance or nonknowledge, whatever—for those who refuse to do it, one, I think the things that are in place with the Justice Department need to be there, particularly because of the people that refuse to do it after they——

    Mr. CANADY. Wait a second. I understand that. We are not talking about doing away with enforcement, because no matter—I understand that there are always going to be some bad actors who think they can get away with something and you have got to have the hammer to get to those people. That is true in any realm, okay? Anytime you have a law, there are going to be people who think they can get some advantage by not complying with it. So we have got to be able to deal with those folks.
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    But I am asking a different aspect of this. Let's focus on how we can do our best from the start to make sure that those people never have a chance to violate the law. Do you think that there are things that we can do in the system that would help increase the level of initial compliance?

    Mr. MALLERIS. In my written testimony, I talked about, if there was an educational component here, that you want to proceed forward in conjunction with keeping up with the enforcement things that are taking place.

    The thing that concerns me on the educational aspect, if something was put into place to increase education, the one problem that was brought up by Kelly from Idaho, where people don't come, I do know just to give you the best example and how do you force people to learn or to come, usually their response has been, if there is some action happening that is highly visible, people will come and respond.

    To give you an example, in the county I am residing in, the local center for independent living provided training, and one municipality showed up—disability groups, everybody, the training, asked to speak. So why isn't it until it becomes a hot topic—whereas a hot issue where a suit has been filed, then it seems it is a hot issue and it is in the media and people are responding? How do you force somebody to learn?

    So to answer the question candidly, how much education or what could be promoted, I do know that it needs to be a concerted effort, increased coordination between all bodies of Government—Federal, State, and local. Particularly I have a problem with municipalities that opt out and don't enforce Chapter 11 of the accessibility code, which encompasses the seven technical requirements. I have a real problem with that. And I do know of some municipalities that purposely have opted out of enforcing Chapter 11 and including it in their local ordinances.
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    So I think there needs to be a dual approach. You need both. You can't just rely on codes and locality. You need both at the Federal level. You need them at the State level and local level to assure we are going to increase the housing stock of accessibility.

    Mr. CANADY. Are there others that want to comment on that question?

    I think there are several. Mr. Tipton.

    Mr. TIPTON. Yes, sir, Mr. Chairman.

    First of all, I think Mr. Malleris and I and Len and everybody else has said, it has got to go into the codes. That is number one, so the builders know what to do to be able to follow it. But I think it needs to be clear for you and other members that the final revision, or the revised manual, the manual that comes out that spells out what we have to, as builders, follow didn't come out until 1996 and then it was revised in 1998.

    It is very hard to comply with the law that you don't know what you are complying with regardless of what the intent of the civil rights law was. None of us in the home building industry—and I will say this blanket, none of us really want to do anything against the disabled. We want to comply with this law. There is nothing that we don't want to comply with, but we have to know specifically what it is that we have got to do. In order to do that, when we go get our building permits to build these units, then we have to be told at that point in time whether we comply or not. It is just that simple.
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    Mr. CANADY. I will give myself 3 additional minutes and go to Mr. Black.

    Mr. BLACK. There appears to be a consensus among all of us, if the fair housing accessibility requirements are found in the building codes that are used in the localities that that solves much of the problem, because the system is that the local code enforcement official is going to be the one that issues the building permit prior to the ground being dug up.

    I think what Congress can do, because the Supreme Court suggests you can't mandate——

    Mr. CANADY. We can't commandeer. I think that is the term the Supreme Court has used, the administrative governmental apparatus of the States, and say, hey, we are going to force you into the service of the Federal Government to enforce a law that we have passed. We can't just issue a mandate that they do that.

    Mr. BLACK. I certainly don't disagree with that, but I think what you can do is indicate to the Department of Housing and Urban Development that the recent facilities that they have made or recent motions they have made to the private code sector to try to look at the model building codes, determine whether they comply with fair housing, how can they be tweaked to better comply with fair housing, is certainly something that Congress can do. Unfortunately, that has been a fairly recent development, and we have looked to HUD in the past as disability advocates saying, ''Are these guys, these model code guys, doing the right thing?'' And the answers that we have received have been less than strong, I would say. They have been kind of mushy.
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    If Congress said to HUD, ''You need to work with the international building code and the accessibility standard folks and make sure they are doing the right thing, because it benefits everyone,'' that would certainly, I think, solve a lot of the problems we see today.

    Mr. CANADY. Mr. Myers.

    Mr. MYERS. Getting compliance at the front end of it is certainly the key. Enforcement at the back end is not serving the needs of anyone. There are 40,000-some code officials throughout the country that look at and enforce code regulations on a daily basis at the local level. With different segments of enforcement activities going on that are not coordinated, there is no doubt going to be confusion about which rules rule.

    If what I have in my community, my local community is in fact what I have the authority to implement and to rule on, that is it. If HUD has some other animal over here that is in conflict, I can't do anything about that; that is outside of my authority. However, if you say, if a jurisdiction has adopted the international building code, it is deemed to comply, I will issue that certificate of occupancy; and on the day that I issue that certificate of occupancy, it has also met Federal law, contrary to today when I could issue a certificate, meets all of the local laws, and in fact is in conflict, doesn't meet law.

    That is 40,000 enforcement agents that are on the street today. You can't beat those odds. That is at the front end when we are talking with the design professionals and manipulating it on paper, not bricks and mortar. By having the deem-to-comply portion of this, I believe the Federal intent is met.
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    There is a similar issue being dealt with right now with FEMA and the International Code Council on natural disaster recovery money. Director Witt has signed an agreement, a memorandum of understanding, with the ICC that says, in essence, if you are not adopting the ICC family of codes, your natural disaster recovery money may be in jeopardy.

    Mr. CANADY. Without objection, I will give myself 2 additional minutes. What I would like to do is let Mr. Buckland take one of those minutes and Ms. Kitay can take one.

    Mr. BUCKLAND. Well, I think one of the things that Congress could do is actually make the law specifically address the issue about architects being liable under the act, because then architects will take a harder look at designing buildings that comply with the Federal Fair Housing law.

    Mr. CANADY. Ms. Kitay?

    Ms. KITAY. I think HUD has already taken an action that is very positive in its approval this week of the latest ANSI standards as meeting the requirements of the Fair Housing Act. But getting answers from HUD up till now has been a matter of pulling teeth, and that is very difficult for people who are on the front lines designing and building these.

    One of the largest problems that my clients have is getting an answer. None of us here are defending people today who are out there willfully violating the law. We are here on behalf of people who want to do the right thing and aren't able to. So one of the things that I would recommend is that Congress somehow mandate some kind of technical assistance from HUD beyond what—that HUD already is required to do. I have had clients who have called HUD, who have written to HUD. I have done it myself, trying to get answers to specific design questions, and we can't get answers. And it is not fair then for HUD to turn around and sue people for not complying with the law that they have failed to explain to those people.
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    So I think that whatever Congress can do to mandate answers from HUD would be very helpful.

    Mr. CANADY. Thank you.

    Mr. Watt is recognized.

    Mr. WATT. Thank you, Mr. Chairman. I want to apologize again to the witnesses and to the Chair and my fellow members on the committee and others who are interested in this issue. My being in and out is not an indication of lack of interest or concern about this issue. This is a very, very important issue, but as many of you know, we were pretty devastated in North Carolina as a result of recent flood damage. There is a bill on the floor that I had to go and debate because it doesn't have any money in it to address the needs of building in North Carolina, one of the issues that we are dealing with here.

    I am hesitant to get into a long series of questions because I don't know what has been covered or not. I do want to do two things, however. First of all, I want to be clear with Mr. Tozer about one aspect of your testimony. In the last paragraph you say, ''To say I am disappointed in my Government is an understatement. For me it is too late.''

    Let me be clear, if this bill were passed, would it have any impact on your situation, or is it in fact too late to address your particular situation? Are you still in litigation? What is the current status of what is going on with the situation that really, I guess, was the starting point for this hearing and for the bill?
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    Mr. TOZER. Well, currently it has kind of been in a state of limbo. In their process, they serve you with papers and ask for information and then it takes some prolonged period of time. There has been nothing back to me from the Justice Department since——

    Mr. WATT. Has there been a lawsuit filed against you?

    Mr. TOZER. No. They are asking for information on the project plans, specifications, and indicated that I was in violation of the Federal law.

    Mr. WATT. I just want to be clear about that because Representative Jones and Representative Clayton came to visit me in anticipation of this hearing, and I asked them to provide to me copies of all the documentation related to your case, and the only document that I got was a letter dated May 10, 1999, from the Department of Justice to you that asked you for a series of documents.

    [The letter follows:]

62479a.eps

62479b.eps

62479c.eps

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    Mr. WATT. Are there any other documents that you have been served with or that I do not have other than this letter?

    Mr. TOZER. No. That is the letter.

    Mr. WATT. So basically all Justice has done at this point is made an inquiry? They haven't filed a lawsuit against you.

    Mr. TOZER. Well, they don't serve those types of letters without having already thoroughly examined the project, and now they are asking for the technical data to support their belief that there is a possible violation. Their attempt is to get the information, apparently have some meeting of some type is what happened to the other builders in our community, and then try to resolve the issue if they can with some type of retrofit, fines, whatever, building special structures.

    Mr. WATT. But at this point, they haven't taken any further action against you. I take it what you anticipate is the next step would be they would meet with you and they would try to be some resolution of this issue.

    Mr. TOZER. Right. I think I have been told that probably because the Justice Department has served me with this, that I don't get out of the loop; I am in the loop. When it happens—like the legal, you know, it just takes too long. I don't know when——

    Mr. WATT. I just want to be clear. The part of your testimony in the last paragraph which says, ''For me it is too late,'' I want to be clear on that, too, because I want to make sure we have a clear record here, not because I am trying to put you on the spot, but if this bill were passed, it would apply to your particular situation, too, so it is really not too late for you. Am I wrong or right about that?
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    I am not trying to play games with you about it. I just want to be clear about it.

    Mr. TOZER. Right. That is correct.

    Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.

    Mr. WATT. Thank you, Mr. Chairman.

    I will go quickly to the concern I want to express because you, Mr. Tozer, made a comment that basically said you anticipate getting into a discussion about whether there is going to be some retrofitting or revision to the building that you were involved in. I will tell you my concern about this whole issue after going back and reading the statute that is being applied here.

    The statutory provision contemplates that buildings will be made accessible for disabled, handicapped people. And these buildings are specifically buildings to be occupied, as I understand it, in a number of cases by disabled people. So the question then becomes whether in the scheme of things when we go back to review, who is going to be responsible for making these buildings ready for disabled people? You may not want to pay the cost, but I am sure disabled people don't want to pay the cost either. And in a sense we are in a Catch-22 because this is a question of who pays that cost.

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    If the builder doesn't pay it, if the architect isn't responsible for it, if the developer isn't responsible for it, either the work doesn't get done, in which case the housing is not usable for disabled people or the cost gets shifted to a disabled person or group or somebody else who then must pick up that cost. And what I would be interested in is trying to figure out some equitable way of getting that cost paid without—clearly the disabled people didn't have any responsibility for this.

    You may not have had responsibility in the sense that you didn't know that you were violating the law. But somebody is going to have to revise the unit that you constructed. Otherwise, somebody is—it is not going to be usable for this purpose. And I just wonder if anybody has any comments to make about who pays that cost and the equities that go with that.

    Mr. CANADY. Without objection, the gentleman will have 3 additional minutes.

    Mr. TIPTON. Mr. Watt, I don't think in some cases anybody can make those changes. Obviously, in your part of the country, there won't be many multifamily units built because of topography problems, so you can forget multifamily units. Unless they are going to do a lot of bulldozing, I don't think the environmentalists are going to appreciate that.

    Mr. WATT. You are talking about as a result of the flood?

    Mr. TIPTON. The topography.

    Mr. WATT. As a result of the flood, you mean?
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    Mr. TIPTON. No, in western North Carolina or in other parts of North Carolina where there are a lot of severe topographies where you can't get graded out to allow the zero entrances, you can't go back and correct them. Some areas or like when units are built and some of the bathrooms now, and we are talking about existing units, that you can't go back and make those changes. You just basically have to bulldoze them and go do that.

    So the bottom line is we would have to work out some kind of equitable solution that we could do in lieu of those units that are there, try to facilitate or add to an additional supply. But make no mistake about it. The way the guidelines are drafted now, there are going to be a lot of areas that are not going to be multifamily units built.

    Mr. WATT. What about in the areas where that is not the situation?

    Mr. TIPTON. To answer your question specifically, there are some units that nobody is going to be able to retrofit because they are just unretrofittable. You can go and bulldoze them, but you are not going to be able—nobody is going to be able to have—to pay the price. If there is an accessible unit, builders—I can't say this as a blanket statement, but I certainly know if I had a handicap or disabled person that came, I would make every effort possible; and I am sure the multifamily builders in this room would also say they would pay for the improvements to be able to put that in there. That doesn't happen often to us, but if it did, I am sure the majority of us would be willing to do that.

    Mr. BLACK. Eastern Paralyzed Veterans firmly believe it is has to be someone on the developers end of it and not the ultimate tenant who pays for it, because even for people who are fairly well to do, the types of costs involved in terms of removing doorways, widening hallways is just too prohibitive.
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    It is not so far out of line to say, sometimes the best thing to do is to bulldoze over and start over again. We are aware, however, a number of instances in both western New York and on Long Island where buildings that were built in violation of the Fair Housing Act were sought by disabled tenants or prospective tenants or condominium owners; and in those instances, the costs were incurred by the disabled person. So the individual ends up spending, in one case, in excess of $3,000 for a front entrance, when that front entrance should have been accessible under the law to start with. That we find objectionable.

    Mr. CANADY. The gentleman may have an additional 2 minutes.

    Mr. WATT. I am not asking any more questions, Mr. Chairman. I just want them to have an opportunity to answer.

    Mr. BUCKLAND. Mr. Watt, you left the room and missed my testimony, but I gave two examples of individuals in Boise that actually approached multifamily housing providers, and contrary to what Mr. Tipton just told you, neither one of those providers offered to do anything to make their apartments accessible. In fact, what they said was that they don't have accessible apartments because nobody has asked them or they don't have accessible apartments because they don't think anybody needs them. That is the kind of prejudicial attitudes we are dealing with.

    And I also want to make clear that Fair Housing Act accessibility requirements only apply to complexes of four or more units. So the burden of paying for accessibility modifications for anything under four units already rests on the shoulders of people with disabilities. So unless you are living in a large multifamily complex, people with disabilities are already shouldering the burden of the cost.
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    Ms. KITAY. Congressman Watt, perhaps I am just a very lucky attorney. But I have to say that of all the clients who primarily are multifamily housing providers across this country, I have yet to run into one who has a property built that is covered by the Fair Housing Design and Construction Standards that, when becoming aware that the property may have accessibility problems, has not immediately said to me if someone wants us to fix it for them, we will be—we will do that.

    Mr. WATT. Do you think that would happen in the absence of——

    Ms. KITAY. Absolutely.

    Mr. WATT. If this bill were passed do you think that would still happen?

    Ms. KITAY. I think they will. My experience with my clients is, they are committed to providing accessible housing and they have no objection to it. Now, the law itself does say with pre-1991 housing that accessible features that are requested by a resident are to be paid for by the resident. I have plenty of clients who say, well, depending on what they need, we may or may not pay for it, but their position has generally been, post-1991, if we didn't do it right, we will fix it when somebody needs it, which I think is a very equitable solution. Yes, it should have been designed in the first place. It is not. We can't bulldoze the whole building.

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    Like I said, maybe I am a very lucky attorney. I don't know. But that is my experience.

    Mr. CANADY. Just keep going.

    Mr. MALLERIS. I have got to respond. I appreciate the comments, the questions, but I am going to respond first to one issue which Mr. Tozer brought up about some of the activities with other developers in their area, the Justice Department working with trying to resolve in retrofitting or setting up a fund or whatever on a sliding basis to make that work.

    As far as people willing and wanting to do it, before I started my development company, before I started, I was doing consulting out there and working with people and wanting to get some things happening. I will tell you the willingness was not there, okay, even on a voluntary basis.

    Now, we want to do the minimum to meet the minimum. As a developer, I see it out there. I talk with inspectors, I meet with people, and I know because I am in the business, the development business. And I'm going to say this—I say it carefully—I have had people in the industry tell me when it comes to building and when it comes to construction, it is a blank business. The reason I am saying this is because—it is sad because people always try to get things done and hurry up and get out and get quick. I see it in the field, hurry up, get the construction done, get by with as much as you can, it is profit, profit, profit. People have a right to make a profit in the private sector, but not at the expense of an entire population.

    Mr. WATT. Mr. Tozer, you get the last word on this.
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    Mr. TOZER. I think we can all probably say that life is one mistake after another, and we all learn from our mistakes as we go through life; and I think we have—and I think I am hearing that we realize we have a problem. I am not really sure I have heard anybody put their finger on the definite problem that we have been talking about today.

    We have talked about code issues and architects and engineers. I am not sure it could be resolved in an afternoon, but there is a problem and we need to look at and define the problem as in business and in life. Once we define the problem, then we can figure out the solution and then we can eliminate this problem, so the disabled community gets what they are entitled to and the builders can do what we do best. We build; we don't design.

    It is my belief that the problem that exists here is twofold. One is the code and how this law is passed on to the code officials in local communities. And then about architects, who design. Again, we build. The plans are too complicated page after page of notes and scales and charts we have to follow. We don't do that. That is not our expertise.

    Until we figure out a way to administer that down through the channels, this problem is still ongoing right now. It is across the country. Can we all realize that it is a problem across the country?

    And in answer to fixing these units, some of these units, particularly the unit I am talking about, there are structural problems which make the retrofit a huge amount of money. It is a problem. It is a mistake. Who do you point the finger at? Who do they want to nail to the cross?
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    I think you need to look clearly at how the Federal Government can affect local codes and get the message out to architects and the engineers even if it requires a certified letter to every architect and engineer in the country on the Federal law.

    Thank you.

    Mr. CANADY. Thank you.

    Again, I want to thank all the members of this panel for your testimony. I think this has been a very helpful hearing this afternoon. I don't think we have necessarily come up with definitive answers on all the questions here, but I think the discussion has been very helpful to the subcommittee.

    [The prepared statement of Mr. Lee follows:]

PREPARED STATEMENT OF BILL LANN LEE, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

    In 1988, Congress enacted legislation promising housing opportunities for millions of disabled Americans. Newly constructed multifamily housing would, for the first time, be required to have features that would make this housing accessible to and usable by persons with disabilities. The accessibility requirements included in the Fair Housing Amendments Act of 1988 went into effect in 1991. H.R. 2437 would exempt from these requirements almost all multifamily housing built since 1991. We oppose this effort to renege on the civil rights protections promised to people with disabilities over a decade ago.
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    The accessibility requirements of the Fair Housing Amendments Act were enacted with the support of civil rights groups and industry, including the National Association of Home Builders, the National Association of Realtors, and the American Institute of Architects. The Act passed with overwhelming bipartisan support in Congress.

    Through its landmark 1988 legislation, Congress intended to address the ''consistent failure to design and build housing having accessible features.'' 134 Cong. Rec. S10544–02 (Aug. 2, 1988) (Sen. Stafford). The statutory provisions adopted then were understood to be ''minimal standards'' that would ''eliminate many of the barriers which discriminate against persons with disabilities in their attempts to obtain equal housing opportunities.'' H.R. Rep. No. 100–711 at 27 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2188–2189 (House Report).

    The Fair Housing Act accessibility requirements for multifamily housing are very simple, basic, and reasonable. Public and common use portions of buildings, such as lobbies and laundry rooms, must be accessible and usable; entrances, doors and hallways must be level and wide enough for wheelchair users; rooms must be on an accessible route; switches and other controls must be reachable; bathrooms and kitchens must be configured to have maneuvering space for wheelchair users; and bathrooms need to have reinforcements inside walls to accommodate later installation of grab bars. 42 U.S.C. §3604(f)(3)(C). It was understood that these ''modest requirements'' would provide ''features which do not look unusual'' and which would ''not add significant additional costs.'' (House Report at 18).

    These accessibility features are fundamental to people with disabilities and their families. Failure to meet these requirements has meant, for example, that an individual with multiple sclerosis had to drag himself into the bathroom because the door was too narrow for his wheelchair. Another individual, also with multiple sclerosis, had her husband carry her in and out of the bathroom. She was unable to visit other residents because the connecting sidewalks were too narrow for her wheelchair. An elderly man who had once been able to walk with a cane but then needed to use a walker because of his deteriorating health, was unable get around his apartment without great difficulty because the doorways were too narrow. A woman had to carry her disabled son around her apartment when he visited on weekends because the doorways were too narrow for his wheelchair.
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    If H.R. 2437 is enacted, hundreds of thousands of housing units built since 1991 that should have included these minimal accessible features will be exempt from enforcement. The bill provides that those requirements will not apply to any building constructed since March 13, 1991—the effective date of the accessibility provisions—if it ''received a building permit or other similar approval from the relevant State or local building authorities as meeting the requirements of the applicable building code.'' Because there are few, if any, multifamily buildings which would have been constructed without a building permit, the bill effectively immunizes from federal enforcement all noncompliant buildings constructed in the last eight years.

    H. R. 2437 is not properly characterized as merely providing a ''safe harbor'' for ''developers and owners for certain buildings built in compliance with the applicable local accessibility requirements.'' Testimony of Michael T. Rose for the National Association of Home Builders before the House Subcommittee on Government Programs and Oversight Committee on Small Business, July 27, 1999. The bill mentions nothing about having to meet the accessibility requirements of any local building code. It exempts all housing that has received a building permit or other similar approval from local building authorities, regardless of whether that local code contains any provisions mirroring the requirements of the federal Fair Housing Act, or for that matter, has any accessibility requirement at all.

    Designers and builders of multifamily housing have had sufficient opportunity to learn the requirements of federal law. It is significant that the accessible housing mandate imposed by the Fair Housing Amendments Act were the last provisions of that Act to take effect. Indeed, while other portions of the statute became effective six months after enactment, in March 1989, Congress provided architects and the construction industry with an additional two years, until March 1991, to learn about their obligations regarding the accessibility provisions. Moreover, the statute itself provided a ''safe-harbor'' by stating that compliance with the requirements of the American National Standard for buildings providing accessibility and usability for persons with disabilities (''ANSI A117.1'') would suffice to satisfy the requirements of the Act. See 42 U.S.C. §3604(f)(4). Additional guidance and ''safe harbors'' followed. In June 1990, prior to the effective date of the accessibility requirements, HUD published proposed guidelines setting forth standards for compliance which were consistent with those contained in the ANSI standard Congress had referenced. The guidelines were formally adopted, following public notice and comment, in March 1991. Both the National Association of Home Builders and the American Institute of Architects were among a coalition of organizations which commented on the guidelines. Those guidelines (including the 1990 draft), too, provided the construction industry with a ''safe harbor.''
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    The Fair Housing Amendments Act required HUD to issue regulations and to provide technical assistance to implement the accessibility requirements of the Act. Pursuant to its technical assistance mandate, HUD issued accessibility guidelines and has engaged in outreach and education efforts with regard to the accessibility requirements of the Act almost since the time of their passage by Congress.

    Housing providers may also look to the states for guidance. The Act provides that if a state or local jurisdiction has incorporated into its laws the accessibility requirements of federal law, compliance with such laws shall be deemed to satisfy the federal requirements. 42 U.S.C. §3604(f)(5)(A). Both HUD and this Department have undertaken efforts to encourage local jurisdictions to make known the requirements of federal law and to adopt provisions which reflect the federal mandate. For instance, in 1997, the Justice Department, HUD, and a number of state attorneys general, wrote to local permitting officials and urged them to provide notice of the design and construction provisions of the Fair Housing Act and to make available a HUD pamphlet entitled ''Architects and Builders—Are You in Compliance with the Fair Housing Act?'' More recently, and consistent with the directive contained in the House Report (Report No. 106–286) accompanying the FY 2000 HUD appropriation bill (H.R. 2684), we have been assisting HUD in its review of model building codes to determine whether their accessibility provisions are consistent with HUD's guidelines for accessible housing. These codes are the International Building Code, the Standard Building Code, the Uniform Building Code, and Building Officials and Code Administrators, International, Inc.(BOCA).

    When we have found noncompliance with the accessibility requirements of the Fair Housing Act, the responsible architects and builders have not tried to justify the deficiencies based on provisions of a state or local ''accessibility'' law. Indeed, while we have seen buildings where both the design and construction were noncompliant, we have also seen situations where a builder simply ignored the accessible features of an architect's design plan and, conversely, where an architect failed to follow an owner's explicit instructions to provide a design that met the Fair Housing Amendments Act's accessibility requirements. Providing accessible multifamily housing has simply not been enough of a priority for the home building industry
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    Our investigations have uncovered design features which obviously and fundamentally deny housing to persons with disabilities and have not involved disputes over minor deviations from the statutory mandate. For instance, we have found builders and architects who have included steps—sometimes as many as five—up to the front entrances of their ground floor units; doors—including some with an opening width to a unit bathroom of only 22 inches—which are far too narrow for a wheelchair user to maneuver through; bathrooms built without complying with the clear statutory mandate that walls be reinforced for the later installation of grab bars; and kitchens and bathrooms which cannot be used by persons who are mobility impaired because those rooms provide insufficient space for such persons to maneuver around.

    These barriers were found in buildings that were constructed after 1991 that should have been built in compliance with the accessibility requirements of the Fair Housing Amendments Act. H.R. 2437 would leave persons with disabilities without a federal remedy to redress the violation of their rights to equal housing opportunity. We oppose this proposed legislation.

    Mr. CANADY. I appreciate your commitment of time to be here and the subcommittee now stands adjourned.

    [Whereupon, at 4:05 p.m., the subcommittee was adjourned.]

A P P E N D I X

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Material Submitted for the Hearing Record

PREPARED STATEMENT OF HON. WALTER JONES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA

    The Fair Housing Act requires that multi-family housing constructed for first occupancy after March 31, 1991 include certain basic features to make the unit usable by persons with disabilities.

    This is a law that I support. However, this law has not been enforced in a fair manner.

    Instead of concentrating its efforts on education and insuring that these standards became part of building codes, the federal government has essentially paid bounties to non-governmental organizations to find builders who are out of compliance with the law.

    These selective enforcement operations are wrong. In many cases they threaten the very existence of builders who had no idea that they were out of compliance with the law. The policy of ''gotcha'' enforcement has resulted in far fewer units accessible to persons with disabilities than would be the case with a more rational system of education and enforcement.

    The problems is that—due to a variety of reasons attributable to a number of governmental, professional, and trade organizations—the existence of these requirements was never adequately communicated to the individuals and firms actually constructing the dwellings. Builders have been simply unaware that these requirements even existed.
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    Builders typically comply with various federal, state, and local regulations by constructing dwellings to conform to building codes. They submit their plans to government authorities for approval prior to construction, and each stage of construction must also be inspected and approved.

    If there is a requirement that they include certain basic features to make units usable by persons with disabilities, builders rely upon this process to make that requirement known. However, in most cases, nowhere in this process was the existence of these requirements revealed to builders.

    Now, however, builders—who had their plans designed by professional architects, approved by state or local building authorities, in some cases approved by regional HUD offices, and many cases received HUD financing—are being pursued by the Civil Rights Division of the Justice Department.

    They are being threatened with hundreds of thousands of dollars in fines and legal fees because it is alleged that these projects built years ago were not in compliance with this law which they had no reasonable expectation of knowing even existed.

    HR 2437 does not address the efficacy of the Fair Housing Act. It does not address the value of the standards designed to make the units usable by persons with disabilities, nor does it address the issue of enforcement for dwellings permitted after the date of enactment of the bill.

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    It does establish that builders of previously designed and permitted multi-family dwellings that were constructed to code should not be penalized for not conforming to a law they had no reasonable expectation of knowing existed.

    I believe that providing this ''safe harbor'' to builders is the right thing to do. I also believe that as this legislation goes forward, it should be amended to insure that in the future local building codes reflect these accessibility standards.

    Such a change will benefit innocent builders, and result in more units available for the disabled.

    That is the type of ''win-win'' situation we can all be proud of.

     

PREPARED STATEMENT OF THE NATIONAL ASSOCIATION OF REALTORS

INTRODUCTION

    On behalf of the nearly 750,000 members of the NATIONAL ASSOCIATION OF REALTORS, we are pleased to submit our written statement regarding H.R.2437, ''The Justice in Fair Housing Enforcement Act of 1999''. The NATIONAL ASSOCIATION OF REALTORS welcomes the opportunity to offer its policy viewpoints and observations regarding accessibility in housing.

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    The NATIONAL ASSOCIATION OF REALTORS represents a wide variety of real estate industry professionals including residential and commercial real estate development, mortgage banking, home building, property management, appraisals and syndication.

    The NATIONAL ASSOCIATION OF REALTORS has a long tradition of support for the federal Fair Housing Act. We subscribe to the policy of fair housing and believe that equal opportunity in housing can best be achieved through continued leadership, observance of law, education and mutual cooperation of the real estate industry and the public through a free and open housing market.

    The Federal Fair Housing Act provides for the right of all people to freely choose where they will live without regard to race, color, religion, sex, handicap, familiar status or national origin, and the NATIONAL ASSOCIATION OF REALTORS strongly and wholeheartedly supports our nation's firm commitment to equal housing opportunity. Moreover, the NATIONAL ASSOCIATION OF REALTORS actively supports the 1988 Amendments to the Fair Housing Act which extended protection on the basis of handicap and included provisions that certain housing built after March 1991 would meet seven minimum standards for accessibility.

    These basic accessibility requirements were established to increase access to housing for anyone with a disability, whether they reside in the unit or are visiting the owner-occupants. The NATIONAL ASSOCIATION OF REALTORS believes that the need for these features will increase as our population ages thereby rendering accessibility requirements as an important and critical tool to the availability of accessible housing opportunities. The NATIONAL ASSOCIATION OF REALTORS applauds the Subcommittee for addressing this matter and we welcome the opportunity to work with the Subcommittee to improve the supply of accessible housing under the 1988 amendments to the Fair Housing Act.
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NAR VIEWPOINTS REGARDING ACCESSIBILITY

    The NATIONAL ASSOCIATION OF REALTORS extends our deepest appreciation to Congress for its actions to address the need for clarity and education regarding the accessibility provisions. In particular, we applaud the bipartisan efforts of Representative David E. Price (D–NC) and Senator Larry E. Craig (R–ID) for their leadership in crafting report language accompanying the FY2000 VA/HUD/Independent Agencies Appropriations bill. Their language directs the Department of Housing and Urban Development (HUD) to provide its judgment regarding a matrix of model building code language regarding accessibility and to improve education of the housing industry pertaining to accessibility. The NATIONAL ASSOCIATION OF REALTORS believes increased education and clarity will significantly contribute to improved compliance with the accessibility requirements in future construction development endeavors.

    Unresolved and open for thoughtful discussion and deliberation are issues related to properties constructed improperly between 1991 and today. In recent years enforcement of the accessibility requirements have increased resulting in HUD and some accessibility advocates extending liability for design and construction violations far beyond the spirit, intent and scope of the Fair Housing Act. The NATIONAL ASSOCIATION OF REALTORS is deeply troubled by the tenor and direction of the enforcement actions and we encourage dialogue of all concerned parties to ensure full and complete understanding and compliance of the accessibility requirements.

    More specifically, the Fair Housing Act states that discrimination includes ''a failure to design and construct'' dwellings that meet the accessibility requirements. The NATIONAL ASSOCIATION OF REALTORS questions why subsequent owners and others not involved in the design and construction, and lacking ownership interest at the time of design and construction, are being included as respondents in HUD complaints. The NATIONAL ASSOCIATION OF REALTORS has consistently maintained that those not involved in the design and construction of property should not be liable for failures in the design and construction process. An appropriate remedy would be to accept their inclusion as necessary parties if the notification they receive from HUD or plaintiffs clearly explains that their inclusion is for access to the property for relief, not for determination of liability.
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    Additionally, property purchasers have lacked reliable methods to perform due diligence and examine whether the property they are purchasing meets the accessibility requirements because of the absence of clear and concise guidance. Real estate agents facilitating the transactions are not authorized to practice law and make determinations as to whether the property is in compliance. In one particular case real estate agents were alleged to have violated the law by brokering the sale of a building constructed improperly. Although HUD exonerated the real estate agents and provided verbal assurances to the NATIONAL ASSOCIATION OF REALTORS that its policy is not to charge real estate agents solely because they brokered such transactions, the NATIONAL ASSOCIATION OF REALTORS believes a stronger and more forceful written clarification is needed to assure our members that such allegations will not be issued. Without it, the NATIONAL ASSOCIATION OF REALTORS is concerned that there will be greater reluctance on the part of our industry to broker or purchase multifamily housing.

NAR INTERPRETATION CONCERNS REGARDING ACCESSIBILITY

    The Fair Housing Act provides for seven requirements to improve accessibility. Theoretically, the requirements are simple and easily understood; however, in practicality, they are complex and confusing because of their manner of implementation. As the Subcommittee is aware, the Fair Housing Act is a civil fights statute in which discrimination is prohibited. Determinations of compliance are customarily made after there has been an allegation of wrongdoing. A real estate agent does not approach HUD or the Department of Justice to obtain a ruling that their practices comply with the law. Rather, when a complaint is filed, there is usually a ruling on the facts pertaining to the case.
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    Because the accessibility provisions impact how a building is designed and constructed, it has the effect of being similar to a building code. Building codes are established and permits are subsequently issued if the building adequately and appropriately meets the requirements of the code. Then construction and purchase can proceed with a strong degree of certainty that the law has been followed.

    The 1988 amendments to the Fair Housing Act did not provide for any mechanism for pre-construction or pre-purchase review for its accessibility requirements. Nor did the amendments contain any methods for local building codes to be ruled substantially equivalent to the accessibility requirements. The regulations under 24 CFR Part 100.205(h) specifically state ''Determinations of compliance by a State or a unit of general local government under paragraph (f) and (g) of this section are not conclusive in enforcement proceedings under the Fair Housing Amendments Act (emphasis added).

    In addition, HUD was directed to develop regulations explaining compliance with the accessibility requirements. Unfortunately, the publication of the HUD regulations failed to end confusion within the industry. The confusion was compounded by the sporadic and sparse nature of education regarding the accessibility requirements and their lack of enforcement until the late 1990's. The absence of clear and precise guidance and education, coupled with the lack of enforcement in the early 1990's, resulted in the improper design and construction of far too many housing units.

    It is important to note that, prior to 1998, controversy between HUD and the building industry fostered several worthy attempts at developing guidance, but usually resulted in HUD acknowledging that its guidance provided no reliance for purposes of demonstrating compliance with the law. The NATIONAL ASSOCIATION OF REALTORS believes HUD's anticipated review of the model building code matrix will provide our members, through their local REALTORS Associations, a reliable model code relating to accessibility to be advocated within their local communities.
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    Additionally, in late 1998 the NATIONAL ASSOCIATION OF REALTORS adopted policy recommending that the effective date for accessibility provisions should be moved to April 1998 to correspond with the date HUD issued its guidance procedures. The policy emanated because of confusion pertaining to design and construction requirements and due to the threat that purchasers and others would bear liability for the failures of architects and builders. Since adoption of the policy position, the NATIONAL ASSOCIATION OF REALTORS has successfully worked with Congress to improve the guidance provided to the housing industry. And, we have received indications that purchasers are included in enforcement actions only as necessary parties.

    Through these developments the NATIONAL ASSOCIATION OF REALTORS recognizes that its concerns can be addressed without drastic changes in the law and we welcome the opportunity to work with Congress to develop equitable solutions to ascertain ways to increase accessibility in housing constructed between 1991 and 1998. The NATIONAL ASSOCIATION OF REALTORS specifically encourages solutions to the issues articulated in our testimony. These include: 1) clarifying that subsequent purchasers are not liable for design and construction violations; and 2) clarifying that there is no fair housing violation for brokering a transaction involving a property which was designed and constructed improperly.

CONCLUSION

    The NATIONAL ASSOCIATION OF REALTORS appreciates the opportunity to submit its comments and observations regarding the accessibility construction requirements of the Fair Housing Act. We believe the Fair Housing Act and its 1988 amendments are important landmarks in the overall objective to eliminate discrimination in housing and we are fully supportive of its missions and purposes.
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Programs for Accessible Living,
Charlotte, NC, October 27, 1999.
Congressman Mel Watt,
House of Representatives, Washington, DC.

Re: H.R. 2437

    DEAR MR. WATT: Programs for Accessible Living is a federally-funded Center for independent Living charged with assisting people with disabilities with independent living skills, peer counseling and advocacy. We have been located in Charlotte, North Carolina for twenty years representing the issues of our constituency to local, state and national legislators. Thank you for this opportunity to speak to the bill before the judiciary Committee tomorrow. Our experience with the issues of concern to this population gives us confidence to speak to you regarding this issue.

    H. R. Bill 2437 is designed to allow builders and developers who have chosen to build apartments and other dwellings in conflict with federal law, to then escape the consequences of their decision. I am shocked that this bill could even get the attention of a legislator to get this far in consideration, When the law is disobeyed, consequences result and that natural progression should be no different here.

    The Fair Housing Act provisions are a minimum standard which has been well known by the industry since its passage in 1991. There is no reason that these developers might chose to defy the law of the land. H. R. Bill 2437 makes a mockery of Federal law.
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    The population of people with disabilities is only increasing as we all get older and more people want to stay in their community and live independently. Of course, we all want to have accessible dwellings when or if we need them. The fact is that this law, the Fair Housing Act, assists people with disabilities for the first time to count on certain standards in accessible design in new construction.

    I urge you to deny any consideration of H. R. 2437. I hope that this bill will be seen for what it is: an attempt to thwart the intent of Congress to provide for a non-discriminatory standard in new construction of multifamily dwellings.

    Thank you for your support for the defeat of H. R. 2437.

Sincerely,

Linda Linfors, ADA/Advocacy Coordinator.

cc: Anthony Fox

     


Housing Consortium for
Disabled Individuals,
Philadelphia, PA, October 27, 1999.
The Honorable Mel Watt,
Committee on the Judiciary,
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House of Representatives, Washington, DC.

Re: House Bill 2437

    DEAR REPRESENTATIVE WATT: I am writing on behalf of the Housing Consortium for Disabled Individuals to oppose House Bill 2437 which would severely impact on the availability of wheelchair accessible housing to disabled Americans.

    The Housing Consortium for Disabled Individuals is the single non-profit organization in the Philadelphia Southeastern Pennsylvania area exclusively addressing the housing needs of people with disabilities. For the past 8 years, HCDI has been a collaborative of agencies in the Philadelphia area which has worked to advance the fair housing rights of all protected classes including people with disabilities under the Fair Housing Amendments Act. In the Philadelphia area alone, there are over 250,000 people with disabilities. Of this number, over 50,000 individuals are either wheelchair users or have severe mobility problems which require that they have access to architecturally barrier free housing. It is estimated for example that in Philadelphia, the available supply of wheelchair accessible housing can meet 5 percent or less of this need.

    As indicated in H.R. 2437, this legislation would effectively exempt all housing which was to have been made accessible since March of 1991 from retroactively complying with the existing Fair Housing Amendments Act accessibility requirements. The potential loss of the covered units which should have already been made accessible will effect not only all of adults with disabilities, but also families headed by disabled members or which contain children with disabilities, but also large numbers of older adults across the country who have disabilities.
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    HCDI strongly urges your Subcommittee to remove this provision of the Bill so that people with disabilities will have a realistic chance of being part of accessible accesible housing development and American communities.

    At this time of professed rising opportunities for all Americans, the disabled population cannot afford any regressive efforts concerning their access to housing or which in any way will negatively impact on their quality of life. The proposed bill must be considered among the harshest of possible regressive measures of this type. We therefore urge you again to remove this provision from H.R. 2437 and not allow the passage of this Bill.

Sincerely,

Lee Capkin, Ph.D., Executive Director.
     


Fair Housing Council
of Riverside County, Inc.,
Riverside, CA, October 21, 1999.
Melvin Watt, NC,
Longworth House Office Building,
Washington, DC.

    DEAR MR. WATT: The mission of the Fair Housing Council of Riverside County, Inc., is to provide comprehensive services which affirmatively address and promote fair housing (anti-discrimination) rights and further other housing opportunities for all persons without regard to race, color, national origin, religion, sex, familial status (presence of children) disability, ancestry, marital status, or other arbitrary factors. The Council is responsible for the entire County of Riverside and six other local municipalities to help eradicate discrimination in housing—including discrimination based on disability.
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    We urge you, as a Member of the House Judiciary Committee's Subcommittee on the Constitution, to vote to ''TABLE H.R. 2437'' A Any further effort to amend the Fair Housing Act to restrict its requirement that new multi-family housing be constructed so that it can be used by people with physical disabilities should be rejected.

    The Fair Housing Council witnessed an increase of housing discrimination complaints based on disability. In fiscal year 1997/98 persons with disabilities ranked third amount the seven protected categories in reporting housing discrimination complaints. However, in 1998/99 housing discrimination complaints based on disability rose 50%. They moved to be the second highest category, following complaints based on race. If this unjust bill is passed, persons with disabilities seeking housing will continue to be denied access to affordable and decent housing. Everyone has a right to equal housing opportunities.

    The Council has conducted and participated in many training and technical assistance workshops with home builders, developers and local officials regarding accessibility issues. The Council has also been successful in educating the general public regarding accessibility issues. There should be no confusion in the industry about accessibility because te problems are serious and not technical.

    We urge you to vote to TABLE H.R. 2437.

Sincerely,

Rose Mayes, Executive Director.
     
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MCIL, Resources for
Independent Living, Inc.
Baltimore, MD, October 28, 1999.
Hon. Charles T. Canady, Chairman,
Subcommittee on the Constitution,
House of Representatives, Washington, DC.

    DEAR REPRESENTATIVE CANADY: I am a Disability Advocate for MCIL Resources for Independent Living in Baltimore, MD. We are a Center for Independent Living serving people with all disabilities of all ages in Baltimore City, Baltimore County, Anne Arundel County, Carroll County, Hartford County, and Howard County. We offer services and support to empower persons with disabilities to lead self-directed, independent and productive lives in the community. The services we provide include advocacy, peer counseling, information and referral, independent living skills training, and assistance in employment and housing issues. We keep a housing database to provide information to accessible housing in the region. It is our mission to promote and enhance systems change to increase levels of independence for our consumers. We advocate for removal of significant barriers and impediments presented to people with disabilities to obtain affordable, accessible housing so they can live in their communities just like everyone else.

    The availability of accessible housing is very limited compared to housing in general. The enactment of the Fair Housing Amendment Act of 1999 has improved the housing status for individuals with disabilities greatly. However, many builders and contractors are still not complying with the law as it is mandated. Because they do not want to comply, the National Association of Home Builders has promoted legislation that will make exception from the enforcement of accessibility construction requirement of the Fair Housing Act for certain buildings constructed in compliance with a local building code. This bill is the Justice in Fair Housing Enforcement Act of 1999, HR 2437, as sponsored by Rep. Walter Jones of North Carolina. We are strongly opposed to HR 2437. In our experiences in working with people who have disabilities, we know this legislation will be detrimental to the disability community. The title to this legislation would be better known as the Unfair Housing Enforcement Act of 1999. There is no ''Justice'' in this. We are still in an age where blatant discrimination against people with disabilities is prevalent. To enact legislation such as HR 2437 will clearly demonstrate continued discrimination. To deny Americans with disabilities a place to live and a place in their community is wholly unfair. Anything less than total inclusion and the opportunity to be lethal form. We do not want the Fair Housing Act of 1988 to be tampered with for this very reason. The disability community is depending on you and members of the Committee on the Constitution to protect their rights against those who want to discriminate against them.
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    The Fair Housing Amendment Act of 1988 required that all apartment buildings and condominiums built after March 13, 1991 would have access to every unit on the ground floor. If the building bad an elevator, every unit in the building would be accessible. In the last 8 year of enactment, this law has resulted in thousands of new visitable and usable apartments. It is negative because there should have been millions instead of thousands. Many builders have ignored the law and continued to build multifamily housing that are not accessible. This has caused disability advocates and the disability community to seek redress through the courts for inaccessibility to multifamily housing. The National Association of Home Builders and its allies are trying to evade their responsibility and the law by promoting HR 2437 which was designed to ease their conscious and make it legal to discriminate against people with disabilities. This big will undo the Fair Housing Amendment Act of 1988's access design and construction requirements for all multifamily housing that has been built since 1991.

    We are asking you and members of the Committee to protect the rights of Americans with disabilities to locate housing and live in communities of their own choosing just like everyone else. Please do not pass HR 2437. Do not allow HR 2437 to lessen the builders' responsibility to obey the Fair Housing Act as required since March, 1991. Thank you for your time and consideration of this serious matter.

Respectfully Yours,

Jamey E. George, Disability Advocate.
     


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Lexington Fair Housing Council,
Lexington, KY, October 19, 1999.
Hon. Mel Watt
House of Representatives, Washington, DC.

    DEAR REP. WATT: On Thursday, October 28, the judiciary subcommittee on the constitution will consider HR 2437. We are opposed to this bill because it will totally gut the Fair Housing Act's design and construction requirements for any multifamily housing built since 1991.

    Homebuilders were put on notice in 1988 that they could not discriminate against the disabled. They were then given a grace period until 1991 to learn how to comply with the law. From 1991–1999 there have been blatant violations of the law.

    The best solution is for each congressperson to work with their state Department of Housing to include the Fair Housing Act's design and construction requirements in the state building code. Most states have included the Fair Housing Act's design and construction requirements in their state civil rights act, but have neglected to put it in their building code.

Sincerely,

Teresa Ann Isaac, Executive Director.
     


The Advocacy Project for
Persons with Disabilities,
Greensboro, NC, October 27, 1999.
Melvin L. Watt,
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House of Representatives, Washington, DC.

    DEAR CONGRESSMAN WATT: I am writing to express my concern about 14.R. 2437 that will provide exception from the enforcement of the accessibility construction of the Fair Housing Act.

    We at The Advocacy Project strongly oppose the passage of this Bill. The design guidelines required by the Fair Housing Act of access to accessible multifamily housing that they did not have prior to the enactment of the FHA. Those developers and owners of multifamily housing who has continually refused to abide by to abide by section 804 (f)(3)(C) of the Act must be held accountable and not given an exception.

    As the director of The Advocacy Project, and a person with a significant disability, I am well aware of the lack of accessible multifamily housing units in this state and the country. To retroactively exempt multifamily housing from compliance with the Act from March 13, 1991 until the enactment of this Bill, is tantamount to telling disabled Americans in need of the design guidelines required by the Act, that the availability of accessible housing should be restricted to the few who are fortunate to find it.

    I ask these questions? Do we have the same right to housing that other Americans have? If so, where are we suppose to live if the accessible multifamily housing units are rare and those who have not complied with the Act are exempt from doing so for the period stated?

    When H.R.2437 was first brought to my attention, I found it difficult to believe that congress would even remotely consider taking such action against Americans with disabilities.
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    I urge you not to support H. R. 2437.

Sincerely,

Aaron Shabazz, Executive Director.
     


Disability Claims Recovery Service,
Burlington, NC, October 27, 1999.
Melvin L. Watt, D. 12th District,
House of Representatives, Washington, DC.

Re: HR 2437

    DEAR MELVIN WATT: As an advocate of people with disabilities, I am writing to advocate that Congress most not pass such a broad-sweeping piece of legislation such as HR 2437 that would have the effect of exempting every multifamily-dwelling built since 1991 from coverage of the Federal Housing Act. This bid is a flagrant violation of the Civil Rights of millions of people with disabilities across the nation. I strongly urge you to vote against Bill # HR 2437.

Respectfully submitted,

Pearl Joyner-Lee.
     

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North Carolina Department of Health and Human Services,
Division of Vocational Rehabilitation Services,
Raleigh, NC, October 21, 1999.
Hon. Melvin L. Watt,
House of Representatives, Washington, DC.

    DEAR CONGRESSMAN WATT: You have a strong record on standing up for the rights of our citizens. It is this very issue that is before the House Judiciary Subcommittee on the Constitution on Thursday, October 28 in a hearing on HR 2437 which would abate those rights. These rights were provided for persons with disabilities in the Fair Housing Act in 1988 and more specifically in March 1991 guidelines issued pursuant to the act for accessible housing.

    Total exoneration of those responsible for multifamily housing built out of compliance with a civil rights act and subsequent design requirements needed for those rights during this period is wrong. As Director of the state agency focusing on vocational rehabilitation, as well as independent living of persons with disabilities, I cannot watch this process without comment.

    As you have in the past, I urge you to stand fast on the rights of citizens who are just beginning to gain opportunities most all citizens have taken for granted. Having a choice of available housing that is usable, and being able to visit others without staying outside is what I believe these standards are about. The design standards are modest and apply only to ground floor and elevator accessible dwelling units in rental and condominium properties with four or more units—and even then allowable site testing can exempt certain buildings from these requirements.
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    Our work in the Field of rehabilitation and independent living can often be compromised or lost without available choice in housing. This bill needs to be defeated.

Sincerely,

Bob H. Philbeck.
     


Oregon Advocacy Center,
Portland, OR, October 26, 1999.
Hon. Melvin Watt,
House of Representatives, Washington, DC.

    DEAR REPRESENTATIVE WATT:
The Oregon Advocacy Center is the agency designated by Congress to protect the rights of people with disabilities in Oregon. In the course of our work, we have represented clients with a multitude of fair housing issues. Obtaining accessible housing is a priority for many of our clients.

    I am writing to urge you, as a member of the House Judiciary Committee's Subcommittee on the Constitution, to vote to table H.R. 2437. Any other effort to amend the Fair Housing Act to restrict its requirement that new multi-family housing be constructed so that it can be used by people with physical disabilities should also be rejected.

    In Oregon, as in many states, the federal standards regarding adaptable multi-family housing have been incorporated into the state building code. Since that incorporation in 1993, architects and builders have complied with those standards. When these standards are incorporated into the design stage, the cost differential between an adaptable housing unit and an inaccessible one is almost negligible. Many of the standards do not involve any additional cost, such as placing the light switches, thermostats and outlets at a level where they are accessible to someone in a wheelchair. The additional cost of wider doors, lower threshholds, and reinforced bathroom walls is a minor expense when measured against the cost of housing, By contrast, the impact on those with mobility impairments is great, whether they seek to live there themselves, or wish to visit those living in the units.
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    Please do not allow the rights of the disabled to accessible housing to be needlessly limited.

    Thank you for your consideration.

Yours sincerely,

Kathleen L. Wilde.
     


Ron Mace Center for Disability
Community Development,
Raleigh, NC, October 25, 1999.
Hon. Melvin L. Watt,
House of Representatives, Washington, DC.

    DEAR CONGRESSMAN WATT: I am writing because of your long standing support for the civil rights of all Americans. As the Founding Chair of the Board of the Ron Mace Center for Disability Community Development, I must alert you that the civil rights of disabled Americans in the area of housing is currently under attach by those who do not want to be held accountable for their violations of the 1988 Fair Housing Act and the 1991 guidelines issued pursuant to the act for accessible housing. This very issue will be before the House Judiciary Subcommittee on the Constitution on Thursday, October 28 in a hearing on HR 2437 that would abate the rights of disabled Americans to have accessible housing in our communities.

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    Such a bill flies in the face of the recent Supreme Court's decision on the Olmstead case in which a majority of the Justices ruled that disabled Americans had a right to live in a place of their choosing. States could not force them to live in congregate housing against their will, There must be accessible housing stock in the community, though, for this ruling not to be merely a pie in the sky, paper-policy right! To exempt builders who have wantonly, or ignorantly, built multifamily housing since 1988 that does not meet the requirements of a civil rights act is wrong. HR 2437 violates the principle of the ''rule of law'' and the standard that ''ignorance of the law is no excuse!'' This bill also undermines communities' ability to support the President's latest initiative for increasing the employment of disabled people. Without accessible places to live, the 78% of disabled Americans still unemployed are unable to establish themselves as viable employees.

    Disabled Americans have struggled mightily for the opportunity to participate fully and equally in the life of our nation and none more mightily than my late partner, Ronald L. Mace, FAIA. Just as with segregated drinking fountains and bathrooms, Ron taught us that building codes that deny equal access are a civil rights issue also! Recently named one of the 100 most influential North Carolinians of this century by the N & 0, he is known as an accessibility activist and the ''father'' of universal design. Ron was the architect primarily responsible for the first accessible building code in the country here in North Carolina. That code was later adopted at the federal level and became the basis of federal accessibility codes—the 1988 amendments of the Fair Housing Act and the Architectural Guidelines of the Americans with Disabilities Act (ADAAG), bills that Ron had a hand in continuing to shape over the years.

    This is just such an attack on our civil rights, and on our capacity to contribute to society, that would have gotten Ron into high battle form. If he were still alive, he would have been speaking before you in the Subcommittee hearing on Thursday. He would, in his most elegant and unflinching manner, blast this as yet another attempt to deny disabled Americans an equal opportunity to participate in life of this nation. The housing stock this bill would exempt, that should be accessible and available today, is desperately needed ... now! A disabled friend recently moved to NC to work with disabled farm workers. She attempted to buy a townhouse, but the developer wanted to charge her for accessibility modifications that should have already existed in 5% of his units. The complaint she filed with the NC Human Relations Commission found the developer to be in violation of her civil rights and the Fair Housing Act. For two months after filing her complaint, she looked for an alternative accessible apartment in the Raleigh area and found none. Ultimately, she had to quit her job and return to live with her parents. This is a crime and a disgrace! I urge you to help defeat this bill and keep disabled Americans on the job!
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Sincerely,

Joy Weeber.
     

PREPARED STATEMENT OF CARRIE ANN LUCAS

    My came is Carrie Ann Lucas, and I live in Denver, Colorado. I recently graduated from Iliff School of Theology with a Masters of Divinity degree. I am approved for ordination as a minister in the United Church of Christ. I use a power wheelchair as a result of a bone tumor, bone infection, and related treatment.

    I also am in the process of adopting my nine-year-old niece. I was living in a one-bedroom apartment while I finished seminary. In March of 1999 I secured a job that would start following my graduation in May of 1999. In preparation for my niece's arrival I needed to find a two-bedroom apartment. I also learned that the rent of my current apartment would be increased by $75 at the end of my then current lease, July 1, 1998. My apartment complex did not have any accessible two-bedroom units. It was built before the Fair Housing Act was amended in 1988.

    During my search for accessible housing, I discovered two primary problems. 1. New construction complexes did not build to Fair Housing Act guidelines, and 2. as a result, the demand for accessible units far outstrips the availability. I am 27 years old with 10 years of excellent rental history. My income and credit rating are sufficient to qualify for an apartment that rents for $800.00 or less. In the Denver market, the average is about $717,
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    I began my search for a new residence during spring break in March, 1999. I got apartment listings from the newspaper, Apartment Finders International, and from For Rent magazine. Many apartments advertised accessible units, however when I called, I discovered that what they considered accessible, and what really is differed greatly. (Several complexes even thought having only a few steps into the building should be considered accessible). During that week, I visited more than 10 apartment complexes. Several were out of my price range. Not one had any ground floor units available. I placed my name on number of waiting lists.

    Over The next two months, I did took at a number of other apartment complexes and still did not find a single one in my price range that met the minimum guidelines of the Fair Housing Act. At this Point I expanded my search to not just within Denver, but surrounding suburbs also. Some would have compliant bathrooms, but not kitchens. Others would have compliant kitchens, but not bathrooms. Others had inaccessible entrances. Some were very close to being accessible, but the complex would refuse to bring it into compliance. Of the apartments at which I had been on a waiting list, two had units come available, but neither were accessible.

    As the months went by, I was coming very close to the end of my lease on my apartment. I was not going to be able to bring my niece to live with me until I rented a larger apartment. I called independent living centers and obtained lists of accessible housing from a variety of sources. During the month of June, I looked at or called every apartment complex in the Metropolitan Denver that claimed to have an accessible apartment for rent in my price range. During the entire month of June, there were only 9 of these so-called ''accessible'' apartments available. Not one of these met the minimum guidelines of the Fair Housing Act. Not one met my needs for accessibility to enable me to live independently.
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    I work for a Disability Rights organization. Our organization receives dozens of calls each month from people searching for accessible housing. A large part of the problem is the lack of available accessible units. I am cognizant of the case builders make for an exception to enforcement of the Fair Housing Act. I would like to make two points. First, it has now been I 1 years since the Fair Housing Act amendments were passed. Builders and designers claim that they do know about the laws, and while that may be the case for a few, it is their business to know the law. Just as bidders and architects learn the latest trends in techniques and materials, so too must they learn changes in the law, It is part of the cost of doing business.

    The Fair Housing Act accessibility provisions provide basic minimum accessibility, and only apply to very limited types of housing. No one is burdened by these basic access requirements; in fact, everyone benefits. For example, 32'' wide doors and flat level entries enable all persons to move in and out of their apartments freely. Neither builders, not consumers, have been harmed by the presence of the Fair Housing Act access standards.

    Congress passed the Fair Housing Act amendments, in part, precisely to address, inconsistencies in local building codes, which prevented basic, accessible housing. The purpose of the amendments was to ensure that a certain portion of the housing market would always be available for people who need accessibility. Local building codes may or may not take this civil right into con consideration.

    Accessible housing is foundation upon which independent living is based. If I am unable to obtain accessible housing, I am unable to be a parent, work outside my home, or be involved in my community. This part of the Fair Housing Act is designed to ensure that I am not segregated by the design of housing available for rent. Please do not force me to live in segregated communities because builders do not comply with a law that was passed 11 years ago. How much longer do they need to learn the requirements of the law? Please do not let this bill go any further in the legislative process.
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(Footnote 1 return)
H. Rep. 711, 100th Congr., 2nd Session, at 18, 25


(Footnote 2 return)
56 FR 9472, 9478


(Footnote 3 return)
Design Manual, 2


(Footnote 4 return)
24 CFR 100.201


(Footnote 5 return)
''[The Secretary] shall call conferences of persons in the housing industry and other interested parties to acquaint them with the provisions of this subchapter and his suggested means of implementing it, and shall endeavor with their advice to work out programs of voluntary compliance and of enforcement.'' 45 USC 3609


(Footnote 6 return)
Sec.213, SBREFA, P.L. 104–121 (1996)


(Footnote 7 return)
HUD press release accompanying announcement of FY 1998 FHIP Awards, Nov. 25, 1998 (''As part of his One America Initiative, President Clinton directed Cuomo to double enforcement efforts brought against perpetrators of housing discrimination by the year 2001 HUD has already doubled its enforcement actions to a rate of 60 to 70 a month, compared with less than 30 enforcement actions per month during the Clinton Administration's first term.'')


(Footnote 8 return)
Sec. 1204(a), P.L. 105–206 (''The Internal Revenue Service shall not use records of tax enforcement results—(1) to evaluate employees; or (2) to impose or suggest production quotas or goals with respect to such employees.


(Footnote 9 return)
Sec. 1, P.L. 105–198 (''The Secretary shall not use the results of enforcement activities, such as the number of citations issued or penalties assessed, to evaluate employees directly involved in enforcement activities under this Act or to impose quotas or goals with regard to the results of such activities.'')


(Footnote 10 return)
Following NAA/NMHC/ASHA suggestions in a December 19, 1997 comment letter, HUD issued a regulation June 25 stating that it will no longer award FHIP funds based on how many enforcement actions a FHIP grantee brings.


(Footnote 11 return)
Fair Housing Act Design Manual, 1996, inside cover flap


(Footnote 12 return)
''Housing Furor Erupts in Atlanta,'' The Wall Street Journal—Southeast Journal, Nov. 5, 1997, S1