 Welcome again to Condo Insider, Hawaii's show about association living. I was thinking about it earlier today. We've done about 70 episodes over the last year and a half approximately. We've had a lot of interesting panelists. We've had a lot of interesting questions. I want to remind our audience that if you want to join our conversation or have a question you're always feel free to call our hotline at 808-374-2014. The last couple of weeks we've been talking about disasters and condominiums mostly related to fire and I thought maybe a little change of topic this week and one of the big misunderstandings from my experience has been the American Disabilities Act and the Fair Housing Act and what applies to condominiums and the great risk that it imposed financial risk primarily on associations that don't handle this correctly. So I invited back my good friend and pal we teach each other a lot and joke but he knows I'm smarter than he is so we'll just get by with that. I invited Scott Shirley back to talk to us about Fair Housing. Welcome again Scott. Well thank you and I'm sure the audience is wondering by now what you have over me that gets me to come in and sit with you during these shows. Yeah I'm sure that's probably true. Probably the promise of all the alcohol after the show then as some bearing on this matter. Well I was promised a raise too. Well you should get a raise. Yeah. Go talk to your boss. Yeah. Oh my wife you mean. Anyway we want to talk about Fair Housing. Yes. Before we get into the specifics of that just give me a little background in that area about your background in Fair Housing and that type of thing. My background is and I've studied written and taught about it for over 20 years is actually what you started the show with. I have studied the Americans with Disabilities Act a great deal and ties it in with federal fair housing. So there like you had mentioned earlier there is a missed sort of like a disconnect where people understand what the ADA applies to what fair housing applies to. My involvement into Fair Americans with Disabilities Act is I had two family members that were basically wheelchair bound and so understanding how that law helped them when it went into place was and then I just picked it up from there and ran with it. Well I hear condominium boards say all the time particularly residential condominiums because we know there's mixed use that has some commercial elements to it but staying with the residential condominium complex we have to do this because the ADA the American Disability Act requires that. And no not at all as a matter of fact I hear that quite often mostly from homeowners who go to the board and says the ADA requires you to do this for me and as we mentioned the I always tell people the easiest way to separate ADA and fair housing persons with disabilities is to think fair housing is housing. The ADA is basically commercial anything of public accommodation your bank your restaurant your grocery stores places like that are under the Americans with Disabilities Act but your home your condo your home a rental is under federal fair housing and of course in Hawaii fair housing laws as well. So in a mixed use condominium where you had a first floor with a restaurant in it those businesses would have an ADA responsibility. But once you got beyond that floor and it's all residential that's federal fair housing. But are the requirements basically the same under fair housing or ADA or well it's interesting you say that or ask that in that a lot of things are parallel in the ADA and fair housing persons with the disability however the big difference is is I live in a condo I'm in a wheelchair I need a ramp on those two steps in order to get to my unit who pays for that. I know the answer the owner pays for it. Me yeah the owner of the unit or the tenant of the unit but in a commercial situation it's the commercial entity that pays for that not the customer who's coming in. So in essence because the ADA is commercial public represents the public at large the commercial unit would pay for that ramp where when you get into housing and it's an individual need of you as a resident or owner or tenant if you want this additional accommodation the cost would be borne by that individual or the tenant who is requesting it and of course the board can have certain rules as well as it must be done by a license contractor and things like that you don't it's like very common people think wheelchairs come in one size that's not entirely true and so maybe you're in an older building where the door is very narrow and you can't get a wheelchair through it you can request and pay for widening of the door but it's got to be approved by the board it's got to be done by a license contractor to do that because you don't want Uncle George coming down with a chainsaw and just cutting a wider door. And for our viewers to kind of give an example that correct me if this is wrong but I'll give you a factual scenario there was a four-story walk-up building where the owner who was elderly wanted to put in a stairlift that is up those four common element stairs because he had a hard time walking and climbing the stairs he wanted to put in at his expense the owner's expense a chairlift and that the board did in that case they said you're more than welcome to use a license contractor to install a proper chairlift recognizing that other owners might be able to use it and this common four-story stairs however we're going to also require you to agree that if you sell or move for the funding unit so that's no longer required do you have an obligation to remove it once you're no longer a resident of the building and not only are you correct I've used that example in a number of my classes as well yeah so the key to this whole thing is that first of all it has nothing to do with the ADA it has to do with fair housing and we certainly recognize the need to support the disabled make your life better by giving them reasonable accommodations but it's not at the association's nickel no and and we have to realize that us boomers are not getting any younger and we're finding more and more people of a certain age I'll say a seasoned age continuing to live in their units wanting to stay in their units so they may later on in life need some type of accommodation to help them continue to stay there and that being said my message to boards from experience are there are situations of their population ages where maybe you want to put a limiter on your elevator doors they will close a little slower or you may want to put additional walkway lighting in which is generally good for everybody but certainly maybe more preferential to the agent that boards just in good conscience should do as an association expense to help make it better for people to live in the property as a matter of fact you know the Americans with Disabilities Act was passed in 1990 went into effect in 1991 so it's been around a while and one of the side effects of that law is more developers and more buildings are already incorporating certain things that are required under the ADA because it makes life easier not just for somebody who has a disability but easier in general so you're seeing more projects with wider doors and door handles rather than door knob and these are just part of the things that is just sort of weaved into general development now well and being a senior and with my my dementia setting in one of the things I would say to you that from good business practice you know best best practices if you improve your lighting or the door closing so it doesn't hurt people you're preventing future liability no matter what the person's age is you know by taking reasonable standards to provide a safer place it's just good business judgment it's great business judgment I do however have because you had mentioned that you were a seasoned citizen they're actually in the fair housing laws two levels or two age levels of being a senior citizen and the first level is 55 and older my issue with that is who the hell decided 55 was senior citizen and I'm getting more upset about that because I'm getting closer to that age and couple years ago I got my AARP card so who decided 55 was a senior citizen maybe they were talking IQ no that could be which means I should have gotten my AARP card much earlier that was my thought I'm glad I know you well we have some fun on the ship but but the reality of is there are those types of properties where they're considered over 55 where they're allowed to establish rules like you can't have children live on the property in a general combination for people as they do age they may want to quiet or lifestyle that's over 55 community and it has to be registered as such and it has to be designed as such and recorded as such the key to those senior living facilities is 55 and older means that it's a 55 and older facility 80% of the units must be occupied by somebody who is 55 or older the next level is 67 and older and that requires 100% of the units to be occupied by somebody who is 67 and older and we have those type of places here in Hawaii but a lot of people are more familiar with them on the mainland where it's not just a building it's an entire subdivision like a Dell web type of development the short example that I one time managed a 55 and over community and we had the situation where we had the 70 year old resident who married the 25 year old girl all right for her to live there even though it was his wife legitimately he had to file for a waiver from the board which was granted summarily because it's a spouse yeah sadly he passed away and so now you have in the resident the 25 year old ex or her wife you know and so she was told she has six months to find another accommodation because she no longer qualified for the waiver because there was not somebody in the home over 55 years of age and that was enforceable yeah and well she either had to find another place to live or another elderly resident to marry within that six months that's she could have done that and unfortunately it got into somewhat legal short term but in the end she recognized that she could not stay there based on the on the rules and and sold the unit because this over 55 home is a particular type of transaction well let's get into fair housing well let's do that and would you say there's a risk to associations if they don't follow the fair housing I think over the last several years I think associations are learning that federal fair housing does affect them and prior to that a lot of condos thought that doesn't affect us because there's a little section in the law that says if you're selling leasing or renting out a unit you're under federal fair housing that was actually argued in court one time and the judge agreed with the attorney and then an appeals court they said no no no it's not just for that can you have a rule that let's say no children under the age of 10 can be out in any of the common areas after a certain time well my recollection we have the federal law that we have kind of a state law which I'm going to say expanded the classes of potential discrimination well and I'll point that out too is you have the federal law as the basis in every state actually has their own additional fair housing protections believe it or not there are some states that have under their fair housing laws that you cannot discriminate against a member of the military and some states you cannot discriminate based on appearance which means you and I could finally get something to rent to help our viewing group here let's talk about the fair federal support okay well what give me some of the things that would be considered discrimination under the federal law federal law only has seven discriminating factors to it and it was passed in 1968 but it was amended in 88 to include things like disability so under federal law you can you cannot discriminate on the basis of race color religion sex handicap familial status in national origin those are the seven standards under federal law any additional would be up to the individual state to create their own familial status is like single married divorced to that with children to wherever children yeah and national origin would be where they came from exactly all right because we're heading on the break right now okay take a one minute break and we're going to come back and give you some very tough questions which I'm going to be listening to very carefully because it may affect your race in the future I'll be back in one minute hello hello I'm Helen Dora Hayden the host of voice of the veteran seen here live every Thursday afternoon at 1 p.m. on think tech Hawaii as a fellow veteran and veterans advocate with over 23 years experience serving veterans active duty and family members I hope to educate everyone on benefits and accessibility services by inviting professionals in the field to appear on the show in addition I hope to plan on inviting guest veterans to talk about their concerns and possibly offer solutions as we navigate and work together through issues we can all benefit please join me every Thursday at 1 p.m. for the voice of the veteran aloha from the foundation for a better life over back with condo insider I'm sitting here talking to Scott surely a true expert on fair housing in the ADA law and during the break our producers said we're funny then so we think it changes to the comedy hour you sing or dance or do anything well then we wouldn't have an audience anymore that's probably true anyway we talked about the federal law and discrimination and we got down to race color origin sex handicapped familiar status national origin so let's just take a situation so you're a condo association you own a unit which you've taken in foreclosure you want to rent it out and so I have an illegal alien come to me and says I want to rent your unit am I now violating the law because of national origin or or because of race by saying I'm not going to rent a legal alien a my condo unit that we foreclosed on I think you've hit on a very hot topic right now because you're seeing more and more this issue coming up with sanctuary cities and things like that and this again is one of the reasons I always have recommended condo associations if you're foreclosed on a unit and you're going to rent it out hire a professional to manage it because the professional knows the statutes the rules your scenario a typical real estate company that's handling a rental has certain requirements that must be provided in order to rent so if I can't provide you an identification that shows who I am if I can't show you a passport of who I am and I can't show you my source of income meaning I can afford this rental but I don't have anything to prove that I can afford this rental those are areas where you don't have to accept that application because those are very strong criteria is on determining if you can afford to even rent the place so you can turn that away and it wouldn't be discrimination based on their where they're from probably the message on that is to be careful what you say because instead of saying I'm not going to rent this to you because you're an illegal alien you would say to them I'm sorry we need a source of income to justify you can pay the rent as the reason so it's very important that boards and or their management team carefully look at how they respond to these things they don't inadvertently use the wrong message for turning down an application another good example why it's important to have a professional doing that they say the board did take it back a unit they're renting out they want the resident manager to show it and somebody shows up and the resident manager says yeah they show up and they got two kids the resident manager says you know the board would prefer not having children live in this have they just violated fair housing just with that remark yes absolutely well it's interesting about it too I'm always advocated having a professional manage the units owned by the association not necessarily because of fair housing but the tent landlord tenant code it's very strict and there's great penalties on that and when you rent units it's better to have someone trained in that skill set renting the units you don't violate nevertheless fair housing the landlord tenant code here in Hawaii absolutely and of course in Hawaii we've added to the federal law on what is discrimination and in that we've added ancestry marital status so being single being divorced is a marital status service animals HIV and AIDS we've also added age disability sexual orientation and gender expression and identity one of the things that's interesting about the one in there HIV and AIDS we actually had a point in the real estate industry that if I sold a house to somebody who the seller had AIDS and I told the buyer the seller could sue me over that but if I didn't tell the buyer now the buyer could sue me over that so you were in a damned if you do damned if you don't situation the legislature came along and said that is a protected class and even added into the language that it is not a disclosure item so you don't disclose whether a seller or buyer has AIDS or HIV well just for everybody's education let me give you a couple of them quick ones to respond to so you have an application and some puts down there I'm a convicted child molester can you discriminate on that person you can discriminate we don't even want to use the word discriminate we can reject that application because of the criminal background but the key to that is have they been convicted of this we're not technically supposed to use information on a criminal background if they haven't actually been convicted of it yet you're presumed innocent until proven guilty but in the court records they have been convicted of this you can turn down that application for that rental because of their criminal background just like you have somebody who's been convicted of cooking crack in the last place they live well what's the likelihood that they might do it in this rental so you can use that as a basis well speaking of crack let's go to marijuana so a person puts in an application and says I'm a marijuana user and I have a legitimate legal marijuana card to use marijuana can you reject them because they're a user of marijuana with a with a medical card you know that's an interesting aspect and I get that question quite a bit and the issue is is under federal law is any use of marijuana legal no no but in hawaiian a number of other states the use of it for medical reasons is legal so the property manager does find themselves in a little bit of a catch 22 but our statute specifically states that you cannot evict somebody because they use medical marijuana and of course if they prove their provide verification that they do however the smoking that marijuana bother the other people around in a condo and in some cases it does and so if the condo association has a policy a no smoking policy and the statute literally says if the person takes their medical marijuana by means of smoking and you have a no smoking policy you can enforce the non-smoking part they can still use it they just can't smoke it but my belief is and correct me if I'm wrong although I haven't been wrong since 1977 I don't believe what I was wrong at in 1977 but I just know I haven't been wrong for a long time but anyway saying that up front so as an owner of a property wanting to now sign a lease with someone an association owned property would fall in this category yeah I have the right to say I don't accept smokers yes you do and it has nothing to do with marijuana has to do with I don't accept smokers and so if I generally don't accept smokers I can reject a marijuana smoker because I'm not rejecting it because they may take it by other methods you know but I'm I'm saying I don't allow people to smoke no matter what it is from this apartment we want to smoke free environment and that I could reject a smoker marijuana person if I generally didn't allow smoking period it's it's interesting too because most of the professional property managers I'd say at least 99% of them already have a policy in the rental scenario of not allowing smoking whatsoever and including to vaping they start they added vaping onto that and of course as you know now in the state smoking laws vaping is considered the same as smoking a cigarette so wherever a cigarette is banned so is vaping yeah that's I understand the issue and I think you're going to do a show coming up here shortly with an expert on the smoking issues in general what boards can do or not do with respect to banning smoking on the nines or in the apartment and that that's another topic in itself so when you see complaints made against boards or associations what do you see the most common fair housing complaints that are made it used to be up until a couple years ago familial status people with children and what was happening is they were creating rules that were specific only to people who had children common one in the house rules is children can't play in the common areas hallways etc etc hud says that's a violation of fair housing and it's a very easy fix nobody can play in the hallways common areas or another aspect of that is children can't roller skate bicycle etc etc just take the word children out and have it nobody not allowed you know I think what's common I see is they I'll use this as an example it varies is that children under 10 can't swim in the pool by themselves but that's an important thing there and I always recommend condos to check with their master policy carrier because some of them already have rules that they want to see on that pool sign because this is a life-and-death type of scenario particularly when it comes to jacuzzi's as well or hot tubs so I always recommend they check with their master policy holder they might be surprised to find that they actually have some recommended well there is things I see is that you know that the issue of swimming in a pool is what if you had a Olympic training kid who's under 10 years old who's experienced swimmer the really issues become I hate to say playing in a pool by anybody using it or two or it comes to the situation of you shouldn't be allowed to be in a pool unless you consider an experienced swimmer if you're not an experienced swimmer then you should have a guardian or supervision or then you wonder that little some associations have the nice fancy pool the jacuzzi and then that little waiting pool that they have for children does that mean an adult isn't allowed to go in there yeah that's probably true but but so to avoid these potential fair housing claim claims which is done by the white civil rights commission what do you recommend associations to I recommend that associations if there's fair housing training offered either through CAI or any of the other organizations take it also when you come up against a fair housing issue at your association talk to your attorney there's a reason and especially somebody who specializes in that area because a fair housing case can really get dragged out it can get nasty we saw one association on Maui ended up not only the the fine which starts out at 16,000 they had to pay out two hundred thousand dollars to the person that they did wrong to yeah the big thing I see is even if the board is right that's somewhat a vague complaint the civil rights commission likes to settle these matters yeah and what they always demand is the board attend fair housing training so it takes eight hours of your time so my okay we're at the end of the show so whatever my advice to them is use professional advice but when you think about fair housing issues with the association and the state law look at what the protected classes are and make sure you take those into consideration before you make policy established rules or make fines whatever it may be so you have any additional comments on that I promise not to discriminate against you because of your age all right how about me do you have any great jokes your song or dance you want to do at the end of the show what are these days you and I are going to come in here with the top hat and we're just gonna I think we'll just dance our way off the show then thank everybody for watching condo insider I actually had a whole another page of questions for Scott so reluctantly I'll have to invite him back again but but as you can probably tell those who are watching we go back a long way of great respect for Scott and his ability on these matters and thank you for being here and thank all of you for watching this week's condo insider aloha