Fighting to Make “Fair” Housing Fair:
The Helen Grybosky Saga From January to July 2008, Helen Grybosky, a then-78 year old widow from North Kingsville, Ohio, received several calls to rent out a three unit home she owned in Conneaut. The first caller, who came to the property, asked Helen about allowing a “therapy dog” for her brother who had anxiety and needed the dog to help him sleep. After some discussion, Helen agreed to allow the animal for an additional $100 deposit. During another visit Helen told a prospect that she would not rent out the second story to small children because the noise between the floors was too much for the old house. Another caller asked about a “seeing eye” dog, which Helen stated she would allow without a deposit. Unfortunately for Ms. Grybosky, the callers were not bona fide applicants looking for housing, but “testers” from a local housing agency, randomly checking landlords for possible housing discrimination—a common practice throughout the United States. Round 1: The Housing Agency Demands Cash In September 2008 the private, non-profit housing agency filed charges of housing discrimination against Ms. Grybosky based on the “therapy dog” and not allowing children in the second story. The agency demanded that she pay it $6,500, undergo housing education, and pay for an advertisement in the local paper announcing her shame. These demands were further submitted to Helen by the Ohio Civil Rights Commission (“OCRC”) under threat that if she refused to pay the private agency the money and other terms it demanded, she would face prosecution by the State of Ohio and be subjected to even greater damages, plus mandatory attorney’s fees. Ms. Grybosky refused to pay the settlement because she did not believe she committed any discrimination based on the testing, and the case was sent to the Ohio Attorney General. The AG filed a formal complaint against Helen and her son Gary, who was listed as owner of the property on the tax records, but whose legal status was actually as a remainderman in a life estate held by Helen. Round 2: The Administrative Hearing The case proceeded to an administrative hearing before an administrative judge employed by the Ohio Civil Rights Commission (OCRC). Following a three day hearing in May 2010 and briefing by the parties, the administrative judge recommended that the OCRC find that Helen and Gary (who never spoke to any of the testers and had nothing to do with the operation or management of the property) committed acts of discrimination based on the “therapy dog” testing and Helen’s not wanting to rent to children on the second story. The administrative judge’s recommended resolution: - Helen and Gary pay $12,000 in actual damages
- Plus $10,000 in punitive damages
- Plus roughly $80,000 in legal fees to the Attorney General and the attorneys for the agency.
In its final decision on October 10, 2013 the Commission found that Helen and Gary committed discrimination on both charges, but modified the recommendations by their administrative judge and ordered Helen and Gary to pay: - $2,513.05 in actual damages to the agency
- Attorney fees of $4,933 to the Ohio Attorney General,
- Attorney fees of $4,185 to the attorneys for the agency.
So after a five year battle, even the Commission had to admit that there was no basis for the $6,500 demand. The Gryboskys appealed the Commission’s decision to the Ashtabula Common Pleas Court. What’s Really at Stake Here…
Read This Even if You Just Scanned the Rest It’s important to understand that the key issues in this case are not about whether what Helen Grybosky said could constitute discrimination were an actual applicant involved. What is important is that the system be changed so that landlords have the opportunity to resolve charges of discrimination in a fair and balanced manner, that they are not faced with mandatory attorney fees, and that private agencies are not permitted to manufacture discrimination as a means to create a profit. The issues in this case will potentially affect the legal rights of every rental property owner in the United States. There are crucial constitutional and procedural questions about how fair housing law is enforce, like: - How does a private housing agency sustain any damages by sending a “tester”—a person posing as a member of a protected class to which they do not belong, and pretends to be seeking housing that they are not seeking— to investigate how a landlord might respond to hypothetical issues? In the law, damages are based on injury flowing from a person’s wrongdoing. In the random testing cases, agencies investigate potential discrimination and do not sustain any injury based on the responses. In other words, there cannot be damages when no one has actually been denied housing, and yet the Ohio Civil Rights Commission allows for the agency to recover “actual damages” where none exists.
- What evidence can a landlord demand to establish that a tenant has a bona fide need for an assistant animal due to a “disability” What evidence is reasonable? Every day now, we hear more stories about people who claim the need for therapy animals for a growing list of ‘disabilities’. An industry has developed that sells tenants and applicants letters (purportedly from medical or psychiatric professionals) stating that they have a need for a “helper animal”. In fact, such a diagnosis can be purchased off the internet for less than $50.
What is not clear in the law—and thus is widely used by housing agencies to engage in testing—is whether anxiety, sleeplessness, etc rise to the level of ‘disability’, necessitating reasonable accommodations under fair housing law. Housing providers don’t deny housing to animals capriciously; animals do measurable damage to units, make multifamilies harder to rent, and present a risk of liability. Who decides when an animal is a true service animal, necessary for a tenant’s day to day functioning, vs. a comfort animal that the tenant wants but doesn’t truly “need”? - 3. Due process issues in the prosecution of fair housing offenders. In Ohio, if an accused landlord does not resolve the charge “through conference, conciliation, and persuasion” (that is, by paying the money demanded by the agency), the case goes to a hearing and if any discrimination is found, the landlord must pay “reasonable attorney fees” and is subjected to potential punitive damages.
As in the Grybosky case, these attorneys fees can total in the tens of thousands of dollars and guess what: there is no provision for the landlord to recover attorney fees or punitive damages if no discrimination is found—regardless of how frivolous the charges may be. In addition, fair housing hearings at the OCRC are different than in a true court of law. Once the case is accelerated to that level, the landlord faces prosecution for any discrimination, not limited to the allegations in the complaint and not even limited to the parties in the complaint. The commission, while presided over by an administrative judge, is not subject to the usual rules of due process. - The impossibility of following requirements that are vague and inconsistent. The statute obligates the landlord to make a “reasonable accommodation” for a “disability,” but also prohibits any inquiry about the extent of the disability and does not provide any specific standard of what is reasonable, or even what constitutes a “disability.”
In other words, you might think you’re making a reasonable accommodation by allowing an applicant’s “anxiety pit bull” with a $500 refundable pet deposit, and still lose a claim because there is no real guidance as to the definition of disability, service animal, or reasonable accommodation. It’s for these reasons that OREIA, its members and member organizations, have been supporting Ms. Grybosky’s legal fund and following her case so intently for the past 3 years. In October, Judge Yost of the Ashtabula County Common Pleas Court ruled on her appeal against the OCRC and the housing agency with mixed results (see the text of the case at www.OREIA.com) : the judge dismissed the disability discrimination based on the therapy dog, denied the agency any attorney fees, dismissed the charges against Helen’s son Gary. However he did find discrimination based on the statements to the tester about not renting to children on the second floor and ordered Helen to pay damages of $1,104 and attorney fees of about $5,000. Next Steps and How You Can Help Make Fair Housing Fair for All The next step is to appeal the case to the 11th District Court of Appeals and eventually to the Ohio Supreme Court. We are hopeful the court will find: - That the procedures in the statutes (including mandatory attorney fees against landlords), which allow the OCRC to engage in such extortion to be unconstitutional
- That the random testing does not create any damages for which the agency can recover any monies, and
- That the statute’s wording for disability and reasonable accommodation is ambiguous and unenforceable in a meaningful way.
A win on these issues will literally even the playing field for you as a housing provider, making it impossible for fair housing organizations to extort money in cases where no damage has been done, making real cases of discrimination clearer and easier to prosecute, and making it far more obvious where the “line”, particularly with animals, is. If every OREIA attendee gave just $25, we could take care of 1/2 of the expected legal bill this weekend. This is a rare chance to invest a tiny amount of money and see a huge, positive effect on our entire industry, so when the hat gets passed, be generous. It’s your own future you’re buying into.
See Court Ruling HERE
A Bittersweet Victory
in the
Helen Grybosky
“Fair Housing” Case The long, painful saga of Conneaut widow Helen Grybosky was finally settled last month in a win for Ms. Gryboski, but a draw for the rest of us. For those who haven’t followed Ms. Grybosky’s case, a more complete summary is available in the legislative matters secin below. But the 20,000 foot overview is this: in 2008, Ms. Grybowsky a then-78 year old owner of a 3-family in Northeast Ohio, became embroiled in a nearly decade-long battle with a private fair housing organization that claimed she had discriminated against ‘testers’ (people not actually seeking housing, but rather paid to ‘discover’ discrimination by presenting various scenarios to housing providers and seeing how they react). After refusing to pay the $6,500 demanded by the fair housing group, she was the subject of an Ohio Civil Rights Commission hearing where she was initially told that she would have to pay over $100,000, mostly in legal fees to the Attorney General. That figure was later amended to just over $10,000, but Ms. Grybosky, believing that she had not denied housing to anyone, sued the OCRC in common pleas court. COREE members, through OREIA, were instrumental in raising over $15,000 for her legal defense over the past 5 years, and the case has reached its conclusion: it’s been dismissed by the court because of what basically comes down to a technicality: one of the documents submitted early in the case was not submitted under oath. You can read the full opinion of the court here:
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2017/2017-Ohio-7125.pdf Because of this error, the court did not rule on the other issues relating to whether testing is a legitimate means to incriminate housing providers or any of the other claims that might have made fair housing fairer. So while some in the blogosphere have declared this a victory, it’s only one in a personal sense for Helen Grybosky. She certainly deserves it, after carrying the standard in this fight for so long, but unfortunately it has no effect on the still vague and unfairly weighted area of fair housing law for the rest of us. We appreciate the tenacity of Ms. Grybosky and her attorney, Tarin Hale in fighting for our rights as housing providers, and the financial support from OREIA's members in raising over $15,000 for the legal bills involved in the case. We look forward to the next opportunity to fight these anti-landlord regulations and to make fair housing truly fair to everyone |