By Darrell Arnold,2014-08-17 12:57
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    Iowa Civil Rights Commission

    Summer/Fall 2007


    For Iowa, for our entire country, 2008 will be a significant year for civil rights. We will be celebrating forty years since the passage of the Fair Housing Act and twenty years since the

    amendments of the Act to include disabled persons.

     Ralph Rosenberg, Director, Iowa Civil Rights Commission

     In the summer of 2007, the Iowa Civil Rights Commission (ICRC) conducted a study of recently constructed apartment complexes in the Des Moines metro area to examine compliance with design and construction requirements found in state and federal civil rights law. Until this time, no such study had been done to analyze the extent to which Fair Housing provisions were being followed in Iowa. The testing project has provided the ICRC with information that will assist the Commission in fulfilling its mission to ―enforce civil rights laws‖ and ―increase public 1awareness of civil rights.‖ This Report will provide a background on Fair Housing legislation in the United States and in the State of Iowa, and it will present the findings of the Commission’s

    testing survey. In the course of the presentation, the Report will describe the study’s

    methodology and offer several explanations for the results of the inquiry.


     In 1968, the United States Congress enacted the Fair Housing Act, which prohibited discrimination in the sale or rental of housing based upon race, color, religion, or national origin. Twenty years later, Congress amended the law by extending the same protections to disabled persons. In the 1988 amendments, Congress included design and construction requirements that would apply to covered multifamily dwellings first occupied after January 1, 1992. Through these seven requirements, Congress sought to prevent structural discrimination against prospective buyers and tenants who were disabled by addressing such features as the widths of doorways, the heights of light switch and outlets, and the abilities to access and use common amenities. Because all of these aspects of multifamily dwellings were potential venues for limiting the housing options of disabled Americans, Congress included the design and construction provisions in its Fair Housing extensions.

     In response to the 1988 legislation at the federal level, the Iowa Legislature enacted parallel requirements, making Iowa’s Fair Housing legislation substantially equivalent to the

    federal legislation. As a result, the Iowa Civil Rights Commission is charged with enforcing

     1 Iowa Civil Rights Comm’n, Welcome to the Iowa Civil Rights Commission Website, (last visited October 22, 2007). Importantly, this was an informational study, not one driven by enforcement against tested housing providers. 2 For a more complete analysis of the history of Fair Housing legislation, see Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act, 40 U. RICH. L. REV. 753 (2006).

both the state andthrough contract with the Department of Housing and Urban Development

    federal Fair Housing provisions.


    A. Black-Letter Law

     Chapter 216.8A(3) of the Iowa Code, whose language resembles its federal counterpart in Title 42 of the United States Code, reads:

    c. For the purposes of this subsection only, discrimination includes any of the following


     . . .

    (3) In connection with the design and construction of covered multifamily dwellings for 4first occupancy after January 1, 1992, a failure to design and construct those dwellings

    in a manner that meets the following requirements:

    (a) The public use and common use portions of the dwellings are readily 5accessible to and usable by persons with disabilities.

    (b) All doors designed to allow passage into and within all premises within the

    dwellings are sufficiently wide to allow passage by persons with disabilities in 6wheelchairs.

    (c) All premises within the dwellings contain the following features of adaptive

    design: 7(i) An accessible route into and through the dwelling.

    (ii) Light switches, electrical outlets, thermostats, and other 8environmental controls in accessible locations.

    (iii) Reinforcements in bathroom walls to allow later installation of 9grab bars.

    (iv) Usable kitchens and bathrooms so that a person in a wheelchair 10can maneuver about the space.

     In addition to these six requirements, administrative law provides a final design and construction requirement: at least one entrance to the building must be located on an accessible 11route. ―Covered multifamily dwelling, the variety of building addressed by the design and construction requirements, is defined in chapter 216.2 of the Code as either ―[a] building

     3 This Part represents a minimally modified reproduction of the corresponding Part in the preliminary report of the study, available on the Iowa Civil Rights Commission website at 4 Accord 42 U.S.C. ? 3604(f)(7) (2006). This provision provides what is arguably the most substantive difference between state and federal law, as the federal law applies to covered multifamily dwellings for first occupancy after March 13, 1991. See id. 5 Accord 42 U.S.C. ? 3604(f)(3)(C)(i) (2006). 6 Accord 42 U.S.C. ? 3604(f)(3)(C)(ii) (2006). 7 Accord 42 U.S.C. ? 3604(f)(3)(C)(iii)(I) (2006). 8 Accord 42 U.S.C. ? 3604(f)(3)(C)(iii)(II) (2006). 9 Accord 42 U.S.C. ? 3604(f)(3)(C)(iii)(III) (2006). 10 Accord 42 U.S.C. ? 3604(f)(3)(C)(iii)(IV) (2006). 11 24 C.F.R. ? 100.205(a) (2003).


consisting of four or more dwelling units if the building has one or more elevators‖ or ―[t]he 12 In other words, if ground floor units of a building consisting of four or more dwelling units.

    an applicable building has an elevator, all units must be accessible according to the seven guidelines; if an applicable building does not have an elevator to service upper floors, only the units on the ground floor need be compliant with the design and construction provisions.

    B. HUD Guidelines

     To assist designers, developers, and builders of covered multifamily dwellings, the Department of Housing and Urban Development devised ―Accessibility Guidelines‖ to elaborate 13on the design and construction provisions provided in the 1988 Fair Housing Act amendments.

    Summaries of the Guidelines are as follows:

    1. Requirement that every building must have at least one entrance on an accessible route:

    the slope of the path from public use facilities, including parking, to at least one entrance

    must not exceed 8.33%, and the door must provide a clear opening of at least 32 inches.

    For any routes on slopes between 5% and 8.33%, hand-rails must be provided, and the 14cross-slope must not exceed 2.08%, or 1:48.

    2. Requirement that public and common areas must be usable and accessible: in general,

    for each type of amenity or facility offered, at least one must be reachable by an

    accessible route and usable by handicapped persons; paths should be clear of protruding

    objects, and sufficient space should be provided for movement.

    3. Requirement that doors must be usable: doors within each dwelling unit must have a

    clear opening of 32 inches when the door is open at ninety degrees.

    4. Requirement that there must be an accessible route into and through each unit: routes

    inside individual units must provide a clear width of at least thirty-six inches; door

    thresholds should be no higher than ? of an inch, and any such change in level must be

    beveled with a slope no greater than 1:2.

    5. Requirement that environmental controls must be placed in accessible locations within

    the unit: all outlets, light switches, thermostats, and other such controls should be located

    between fifteen and forty-eight inches from the floor.

    6. Requirement that bathroom walls must be reinforced for future installations of grab bars:

    while a number of means for providing wall reinforcements may be implemented, areas

    around toilets, bathtubs, and showers should all be ready for grab bar installation.

    7. Requirement that kitchens and bathrooms must be usable by a person in a wheelchair:

    usable kitchens must provide a parallel approach to ranges and sinks and either a forward

     12 IOWA CODE ? 216.2(4) (2007). Cf. 42 U.S.C. ? 3604(f)(7) (2006). 13 Dep’t of Hous. & Urban Dev., Fair Housing Accessibility Guidelines Cont’d, (July 12, 2006), 14 The Guidelines contain exceptions for this requirement if there are features of the terrain and/or site that are unique enough to make an accessible route impractical; the Guidelines provide tests and further instructs for determining site impracticality. Dep’t of Hous. & Urban Dev., Fair Housing Accessibility Guidelines Cont’d, (July 12, 2006),


    or parallel approach to other appliances; usable bathrooms must provide sufficient floor 15 space to enter the room, close the door, use the various fixtures, open the door, and exit.

     While these guidelines were designed to serve as mere recommendations for complying with the Act, they have been consistently recognized in courts as minimum standards for meeting 16the Act’s design and construction requirements. Other ―safe harbor‖ codes have also achieved

    the same status and are widely used. With widespread acceptance of the Guidelines and like codes, the barriers that state agencies and private organizations often encounter in design and 17construction cases involve statutes of limitations and determinations of proper parties.


    A. Site Selection

     In order to conduct a manageable study of design and construction compliance in the State of Iowa, the Commission limited the scope of its testing project to recently constructed apartment complexes in the Des Moines metro area. This geographical selection provided enough sites that results could be conveyed without revealingor implyingthe identification

    of apartment complexes. The Des Moines area also provided a diverse pool in terms of rental prices, allowing the ICRC to test units targeting low-, middle-, and high-income tenants.

     Site selection began by compiling a list of apartments constructed since 2000 in Des Moines and the surrounding suburbs of Johnston, Urbandale, Clive, and West Des Moines, according to the Polk County Assessor’s Office online database. From this list, senior

    communities were filtered out, as were addresses without traceable contacts. The remaining fifteen apartments were then contacted by the tester as a prospective tenant, following preliminary research on the complexes’ websites and in other apartment listings. If ground floor

    unitsas defined by Fair Housing legislationwere not available for touring, the site was

     15 Dep’t of Hous. & Urban Dev., Fair Housing Accessibility Guidelines Cont’d, (July 12, 2006), The Department of Housing and Urban Development offers elaborate instructions and illustrations for designing and constructing accessible homes in OFFICE OF FAIR HOUS. & EQUAL OPPORTUNITY, DEPT OF HOUS.

    & URBAN DEV., FAIR HOUSING ACT DESIGN MANUAL (rev. ed. 1998), available at

    fairfull.pdf. 16 See, e.g., United States v. Quality Built Constr., Inc., 309 F. Supp. 2d 767 (E.D.N.C. 2003) (Doorways with clear openings of twenty-two, twenty-eight, and thirty inches, as opposed to the thirty-two inches required by the Guidelines, violated the Act.); Fair Hous. Council, Inc. v. Village of Olde St. Andrews, Inc., 210 Fed. Appx. 469 (6th Cir. 2006) (The Guidelines call for environmental controls to be placed between fifteen and forty eight inches from the floor; in this case, outlets located ten to twelve inches from the floor and thermostats located above fifty-eight inches from the floor violated the Act.). 17 See Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in “Design

    and Construction” Cases Under the Fair Housing Act, 40 U. RICH. L. REV. 753 (2006). An

    appeal was recently filed with the Iowa Supreme Court on the issue of statute of limitations in design and construction cases.


    eliminated; otherwise, appointments were made to tour the units, and testing visits were conducted in the days following. The tester was not able to determine ineligibility of some locations until visiting; thus, several complexes were visited that, in the end, were not ―covered multifamily dwellings‖ for one reason or another. This Report, therefore, reflects visits to seven

    apartment complexes throughout Des Moines and two western suburbs. Any references to specific complexes in this Report will be presented in terms of ―Site A‖ through ―Site G,in

    furtherance of the informational nature of the study.

    B. Requirements Tested

1. Scope of the Project

     The Civil Rights Commission wished to test as many of the seven design and construction requirements as was practicable, without the use of complex measuring devices, although such testing kits are available. The most impracticable feature to test is the presence of reinforcements in bathroom walls for future grab bar installations; accordingly, this requirement was not tested. The other six requirements, however, could be tested with reasonable accuracy in the course of an apartment tour, so they were implemented into the study.

2. Recording Results

     Compliance with the Fair Housing design and construction provisions was examined through a combination of observation and measurement. The requirements for accessible entrances, accessible and usable common areas, accessible routes into and through units, and usable kitchens and bathrooms were all evaluated by observation of the relevant features of the toured complexes. The remaining requirementsusable doors and reachable outlets, switches,

    and environmental controlswere measured by markings on the tester’s clothing at the 15‖ and 18 During the course of apartment tours, the tester made 48‖ marks and by a small tape measure.

    brief notations on a notepad on each of the six features being tested and also took several digital photographs within each unit. Immediately following each tour, the tester completed Site Debriefing Reports, with the assistance of the notes and photos, which compiled all of the measurements and observations on each of the tested provisions.


     After the site visits were completed, the findings were transferred to a spreadsheet for comparison purposes. This Part of the Report summarizes the findings of the site visits. These results are purely descriptive and should not be generalized statistically to all apartment 19complexes in Iowa. The six design and construction requirements are addressed one-by-one, and comments are provided for each.

    A. Requirement One: At Least One Entrance on an Accessible Route

     18 These markings were repeatedly measured against the actual heights to ensure their accuracy to within less than a quarter of an inch. 19 See infra Part VI.A.


     Based on observation, all seven of the sites tested provided at least one entrance to the apartment building on an accessible route. All of the complexes were located on planed lots, so slopes from parking lots and common areas were minimal, and doorsmost of which were large,

    glass commercial doorsprovided sufficient clearances for persons in wheelchairs, defined by the Act as 32‖. Some buildings used steps at some entrances, but there was at least one entrance to each building within a complex that could be used by a person in a wheelchair.

    B. Requirement Two: Accessible and Usable Common Areas

     Sites that were tested offered a variety of common, public areas for residents and their guests. These included swimming pools, fitness centers, common rooms, computer centers, courtyards, playgrounds, and racquetball courts. There were also more practical common areas, including laundry rooms, mailbox areas, and garbage facilities. With regard to the former, all of amenities offered to residents were reachable by persons in wheelchairs, and sufficient space was 20 Interestingly, with regard to the provided for such residents to use and enjoy the facilities.

    latter common areas, all were on reachable routes, but the usability of some garbage facilities 21and mailboxes was questionable.

     Site F, for example, offered a series of dumpsters for trash removal. While a resident in a wheelchair could approach the dumpsters without any problem, the resident would not be able to actually place trash in the dumpster because the lid was beyond reach. According to HUD’s Fair

    Housing Act Design Manual, ―trash rooms/refuse disposal areas‖ fall under the common use area 22requirements and, thus, must be accessible to persons in wheelchairs. Certainly asking a

    person in a wheelchair to place garbage next to a dumpster does not improve the situation: other residents may not be happy with trash on the ground, and the resident would lose a great deal of privacy if animals tore apart the bags and spread the person’s garbage throughout the complex. There are a number of suggestions for the use of dumpsters in apartment complexes, including the beveling of at least one dumpster for easy access or the installation of a receptacle that allows 23trash to be loaded from the side. Not only do these make trash disposal more universally

    accessible, but they each improve the garbage services for all residents of a housing complex.

     Similarly, a few of the complexes offered mailboxes at heights of questionable reach for 24those in wheelchairs. Although all of the observed mail areas were located on accessible paths,

     20 In one of the seven complexes, neither the swimming pool(s) nor playground(s) were presented as part of the tour. 21 In three of the seven complexes, mailboxes were not shown to the tester. In three of the sites, the tester was not able to see the garbage facilities, though two complexes were believed to offer standard dumpsters for trash removal. 22 OFFICE OF FAIR HOUS. & EQUAL OPPORTUNITY, U.S. DEPT OF HOUS. & URBAN DEV., FAIR


    PARTICIPANT MANUAL 8384 (2005), available at

    ACCESSIBLE_PUBLIC_AND_COMMON_USE_AREAS_FINAL.pdf. 24 For some buildings, this is not a problem: if unreachable mailboxes correspond with non-covered units within the complex or building, there is little need for them to be fully usable. If,


    at least two sites used mailboxes that would not appear to allow wheelchair residents to retrieve items from those boxes on the top rows. Mail reception is an essential feature of housing, and the inability to access an assigned mailbox certainly creates a question of fairness. While HUD does not address mailbox heights directly, the Fair Housing Act Design Manual notes that, when neither the law nor safe harbor codes ―contain specifications for the specific facility or feature in

    questions, then related human factors and performance specifications must be used to achieve 25 In the case of mailboxes, there are certainly height concerns for disabled accessibility.

    persons in wheelchairs, and fairness requires that mailboxes be fully usable.

    C. Requirement Three: Usable Doors

     Five of the seven tested apartment complexes provided entry and interior doors that met or exceeded the 32‖ clearance requirement. One unitwhose living room, dining area, and

    kitchen were all in an open loft arrangementutilized bedroom and bathroom doors that left a

    clear opening of less than 32‖. In the remaining complex, Site G, three units were actually

    viewed; two of those provided usable doors throughout the units, but one of the units provided a door onto a deck with a less than 32‖ clearance. Because ―[u]sable doors include all secondary

    exterior doors at dwelling units that open onto private decks, balconies, and patios,‖ the door in

    Site G would severely restrict a disabled tenant from passing through it and thus appears to 26reveal a violation of the design and construction requirement that doors be usable.

    D. Requirement Four: Accessible Route Into and Through the Unit

     The fourth requirement is related to the previous requirement in the sense that, if a resident in a wheelchair could not use a door, the requirement of an accessible route into and 27through the unit would be automatically violated. Thus, the same five units that provided

    usable doorsbecause they also offered hallways and passages that were 36‖ or wider—

    provided accessible routes through the dwellings. The other sites, therefore, did not offer completely assessable routes through the units. In the case of Site G, the only violation was related to the patio doorway clearance.

     Site B, on the other hand, presented a more complicated scenario. The unit in this multifamily dwelling, in addition to having small door clearances, included a loft area that included a compartmentalized bathroom. The HUD Fair Housing Act Design Manual explains

    that [b]ecause a loft is an intermediate level between the floor and ceiling of the unit, it is not considered a second story. Therefore, a dwelling unit with a loft is a single-story unit covered by the Guidelines. Since all primary or functional living spaces must be on an accessible route, secondary living spaces, such as a den, play area, or an additional bedroom are the only spaces

    however, mailboxes assigned to covered dwellings are placed too high, residents in wheelchairs are unable to use those common areas, and thus they do not comply with this requirement. 25 OFFICE OF FAIR HOUS. & EQUAL OPPORTUNITY, U.S. DEPT OF HOUS. & URBAN DEV., FAIR



    HOUSING ACT DESIGN MANUAL 4.4 (rev. ed. 1998).


that can be on a loft unless an accessible route can be taken to the loft.‖ The bathroom located

    on the lofted area of the apartment, therefore, is not a secondary living space, and it is not accessible to a tenant in a wheelchair. Accordingly, this unit cannot be said to offer an accessible route into and through the dwelling, as the second bathroom is cut-off from the 28primary living spaces of the unit.

    E. Requirement Five: Reachable Controls

     In general, light switches and power outlets were more accessibly installed than environmental controls. In six of the units, outlets were located 15‖ from the floor or higher, and

    light switches were installed no higher than 48‖ from the floor. In one unit, however, both

    switches and outlets were outside the reachable zones of persons in wheelchairs: light switches were located slightly above the 48‖ mark, and the bottom socket of each pair of outlets was 29located below the 15‖ mark.

     Heat and air conditioning controls were not as frequently accessible. In four of the seven units, heat controls were placed between 15‖ and 48‖ from the floor; in the other three, the

    thermostats were mounted above the 48‖ mark. The ability for disabled persons to control air

    conditioning was even more limited in the units tested by the ICRC. While three of the seven units provided control within the defined accessible range, two of them placed them above 48‖ 30from the floor, and two others offered residents window air conditioners placed in high windows. While such individual window unit air conditioners are considered movable 31appliances and are thus not covered by the design and construction provisions, the inability of

    disabled residents to use these provided appliances should be recognized.

    F. Requirement Seven: Usable Kitchen and Bathrooms

     All of the kitchens that were toured by the tester were usable by persons in wheelchairs. Although some provided more space than others, all of the units offered kitchens with sufficient space for maneuvering around the room in a wheelchair and using the available appliances. Parallel approaches were provided for sinks and stove-tops, and either parallel or forward approaches were provided for other kitchen appliances. With regard to the usability of

     28 Interestingly, laundry appliances were also located in the loft bathroom. While the Guidelines do not require in-unit laundry facilities to be accessible, renters in wheelchairs would be restricted in fully enjoying the housing that they are renting. See OFFICE OF FAIR HOUS. &



    HOUSING ACT DESIGN MANUAL 5.8 (rev. ed. 1998) (illustrating that the center of the lower of two horizontally mounted outlets must not fall below the 15‖ mark). 30 One unit even placed the controls above 48‖ and over a kitchen counter, making it practically

    unreachable by any resident, let alone those in a wheelchair. 31 The Fair Housing laws empowers disabled persons to seek ―reasonable modifications‖ from their landlords. See 42 U.S.C. ? 3604(f)(3)(A) (2006); IOWA CODE ? 216.8A(3)(c)(1) (2007).

    The installation of accessible air conditioners would fall under such reasonable modification provisions.


bathrooms, six of the tested complexes offered bathrooms that could be used by persons in 32 The remaining unitlocated in Site Bprovided bathrooms that are usable but wheelchairs.

    not accessible: one bathroom was located on a loft level, and the other did not have a usable 33door for entry. Accordingly, the two bathrooms in this unit are not actually ―usable‖ in the practical sense.


    A. Limitations of the Study

     The results of this study are subject to a number of limitations and should thus be considered with these in mind. First, as stated above, the findings should not be interpreted as statistical, as our sample does not represent an ―average‖ sample of apartments in Iowa—for

    example, this study took place in an urban-suburban setting, so apartments could be designed and constructed very differently in rural parts of the state. Second, measurements were conducted in such a way as to not distract from standard tours of the apartments. The Commission’s tester did

    not enter the tested dwellings with sophisticated measuring equipment, but instead toured the property as a prospective tenant and took notes with as much detail as reasonably possible. Finally, and for the same reason, a few common areas were not able to be testedthey were

    either not included in the standard tour, or housing representatives simply discussed them or pointed to them in the distance.

    B. Contributions of the Study

     In spite of these limitations, the ICRC’s purpose behind the testing project was realized: the Commission now has an increased knowledge of Fair Housing compliance in Iowa, and it is able to share that knowledge with the public. Until the completion of this survey, no similar study had been conducted to measure compliance with design and construction requirements. Therefore, the Commission was not aware of the effectiveness of this legislation, except when confronted with complaints from disabled persons. With low public knowledge of these seven requirements, this study provides Iowans with an opportunity to recognize the obstacles that

     32 Some units contained two bathrooms, but others contained one; there are two options for the layouts of usable bathrooms, but this analysis does not address these separately. Also, in one instance, there was a full bathroom that was usable but a half-bathroom that was not; the HUD Guidelines, however, do not consider a room a ―bathroom‖ unless there is a toilet, sink, and

    shower or bathtub, so this unusable half-bathcontaining only a sink and toiletdoes not


    DEV., FAIR HOUSING ACT DESIGN MANUAL 15 (rev. ed. 1998). 33 The loft bathroom did not actually use a door but merely provided a door opening with a wall several feet in front of it that shielded the bathroom from others below. This bathroom was also compartmentalized in the sense that the shower and toilet were in one room, and the sink was outside of it; the Guidelines, however, treat compartmentalized bathrooms the same as bathrooms that have all fixtures concentrated in one room. OFFICE OF FAIR HOUS. & EQUAL


    (rev. ed. 1998).


    disabled individuals face when searching for housing. Likewise, the Commission is able to recognize where knowledge may be lacking in the housing industry and ensure that designers, builders, and management companies are aware of these challenges and the laws enacted to minimize them. Finally, this project provides the ICRC and its local counterparts throughout Iowa with an adaptable model for examining design and construction compliance in their localities and, perhaps, the encouragement to undertake such an endeavor. The United States Supreme Court has recognized the importance of testing in the enforcement of civil rights, and the above contributions shed only an ounce of light onto why this is so.


     The Summer 2007 design and construction study conducted by the Iowa Civil Rights Commission has provided the agency and the public with information as to the extent that Fair Housing legislation has been followed in Iowa. Twenty years have passed since the adoption of design and construction requirements at the federal and state levels. The ICRC study suggests that, in many ways, multifamily dwellings are available to persons with disabilities. At the same time, it reveals shortcomings in compliance with the provisions; hopefully, this study will increase public awareness of the barriers that persons in wheelchairs continue to face as they seek rental housing and lead to improvements in the identification and elimination of such obstacles.


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