Department of Housing and Urban Development

1 Federal register Friday December 18, 1998. Part IV. Department of Housing and Urban Development fair Housing enforcement Occupancy Standards Statement of Policy; Notice 70256 Federal Register / Vol. 63, No. 243 / Friday, December 18, 1998 / Notices Department OF Housing AND rental, financing or advertising of memorandum was based on my review of a Urban Development dwellings on the basis of race, color, significant number of such cases and was religion, national origin, sex or familial intended to constitute internal guidance to be [Docket No. FR 4405 N 01] used by Regional Counsel in reviewing cases status (the presence of children in the involving occupancy restrictions. It was not fair Housing enforcement family). The fair Housing Act also intended to create a definitive test for Occupancy Standards Notice of provides that nothing in the Act limits whether a landlord or manager would be Statement of Policy the applicability of any reasonable local, liable in a particular case, nor was it State or Federal restrictions regarding intended to establish occupancy policies or AGENCY: Office of the Assistant the maximum number of occupants requirements for any particular type of Secretary for fair Housing and Equal permitted to occupy a dwelling.

2 '' The Housing . Opportunity, HUD. fair Housing Act gave HUD However, in discussions within the Department , and with the Department of ACTION: Notice of statement of policy. responsibility for implementation and Justice and the public, it is clear that the enforcement of the Act's requirements. February 21 memorandum has resulted in a SUMMARY: This statement of policy The fair Housing Act authorizes HUD to significant misunderstanding of the advises the public of the factors that receive complaints alleging Department 's position on the question of HUD will consider when evaluating a discrimination in violation of the Act, to occupancy policies which would be Housing provider's occupancy policies investigate these complaints, and to reasonable under the fair Housing Act. In to determine whether actions under the engage in efforts to resolve informally this respect, many people mistakenly viewed provider's policies may constitute matters raised in the complaint.

3 In cases the February 21 memorandum as indicating discriminatory conduct under the fair where the complaint is not resolved, the that the Department was establishing an Housing Act on the basis of familial occupancy policy which it would consider fair Housing Act authorizes HUD to reasonable in any fair Housing case, rather status (the presence of children in a make a determination of whether or not than providing guidance to Regional Counsel family). Publication of this notice meets there is reasonable cause to believe that on the evaluation of evidence in familial the requirements of the Quality Housing discrimination has occurred. HUD's status cases which involve the use of an and Work Responsibility Act of 1998. regulations, implementing the fair occupancy policy adopted by a Housing DATES: Effective date: December 18, Housing Act (42 3614) are found provider.

4 1998. in 24 CFR part 100. For example, there is a HUD Handbook In 1991, HUD's General Counsel, provision regarding the size of the unit FOR FURTHER INFORMATION CONTACT: Frank Keating, determined that some needed for public Housing tenants. See Sara Pratt, Director, Office of Handbook REV 2, Public Housing Investigations, Office of fair Housing confusion existed because of the Occupancy Handbook: Admission, revised and Equal Opportunity, Room 5204, 451 absence of more detailed guidance section 5 1 (issued February 12, 1991). While Seventh Street, SW, Washington, DC regarding what occupancy restrictions that Handbook provision states that HUD. 20410, telephone (202) 708 2290 (not a are reasonable under the Act. To does not specify the number of persons who toll-free number). For hearing- and address this confusion, General Counsel may live in public Housing units of various speech-impaired persons, this telephone Keating issued internal guidance to sizes, it provides guidance about the factors HUD Regional Counsel on factors that public Housing agencies may consider in number may be accessed via TTY (text they should consider when examining establishing reasonable occupancy policies.)

5 Telephone) by calling the Federal Neither this memorandum nor the Information Relay Service at 1 800 complaints filed with HUD under the memorandum of February 21, 1991 overrides 877 8339 (toll-free). fair Housing Act, to determine whether the guidance that Handbook provides about or not there is reasonable cause to program requirements. SUPPLEMENTARY INFORMATION: believe discrimination has occurred. As you know, assuring fair Housing for all Statutory and Regulatory Background is one of Secretary Kemp's top priorities. This Notice Section 589 of the Quality Housing Prompt and vigorous enforcement of all the Through this notice HUD implements provisions of the fair Housing Act, including and Work Responsibility Act of 1998 section 589 of the QHWRA by adopting the protections in the Act for families with (Pub. L. 105 276, 112 Stat. 2461, as its policy on occupancy standards, children, is a critical responsibility of mine approved October 21, 1998, QHWRA'') for purposes of enforcement actions and every person in the Office of General requires HUD to publish a notice in the under the fair Housing Act, the Counsel.

6 I expect Headquarters and Regional Federal Register that advises the public standards provided in the Memorandum Office staff to continue their vigilant efforts of the occupancy standards that HUD of General Counsel Frank Keating to to proceed to formal enforcement in all cases uses for enforcement purposes under in which there is reasonable cause to believe Regional Counsel dated March 20, 1991, that a discriminatory Housing practice under the fair Housing Act (42 3601 attached as Appendix A. 3619). Section 589 requires HUD to the Act has occurred or is about to occur. publish this notice within 60 days of Authority: 42 3535(d), 112 Stat. This is particularly important in cases where 2461. occupancy restrictions are used to exclude enactment of the QHWRA, and states families with children or to unreasonably that the notice will be effective upon Dated: December 14, 1998.

7 Limit the ability of families with children to publication. Specifically, section 589 Eva M. Plaza, obtain Housing . states, in relevant part, that: Assistant Secretary for fair Housing and In order to assure that the Department 's Equal Opportunity. position in the area of occupancy policies is [T]he specific and unmodified standards provided in the March 20, 1991, Appendix A. fully understood, I believe that it is Memorandum from the General Counsel of imperative to articulate more fully the March 20, 1991. Department 's position on reasonable [HUD] to all Regional Counsel shall be the MEMORANDUM FOR: All Regional Counsel occupancy policies and to describe the policy of [HUD] with respect to complaints FROM: Frank Keating, G approach that the Department takes in its of discrimination under the fair Housing Act SUBJECT: fair Housing enforcement Policy: review of occupancy cases.

8 On the basis of familial status which Occupancy Cases Specifically, the Department believes that involve an occupancy standard established by a Housing provider. On February 21, 1991, I issued a an occupancy policy of two persons in a memorandum designed to facilitate your bedroom, as a general rule, is reasonable The fair Housing Act prohibits review of cases involving occupancy policies under the fair Housing Act. The Department discrimination in any aspect of the sale, under the fair Housing Act. The of Justice has advised us that this is the Federal Register / Vol. 63, No. 243 / Friday, December 18, 1998 / Notices 70257. general policy it has incorporated in consent which they planned to live in a small two- State and local law decrees and proposed orders, and such a bedroom mobile home. Depending on the If a dwelling is governed by State or local general policy also is consistent with the other facts, issuance of a charge might be governmental occupancy requirements, and guidance provided to Housing providers in warranted in the first situation, but not in the the Housing provider's occupancy policies the HUD handbook referenced above.

9 Second. reflect those requirements, HUD would However, the reasonableness of any The size of the bedrooms also can be a consider the governmental requirements as a occupancy policy is rebuttable, and neither factor suggesting that a determination of no special circumstance tending to indicate that the February 21 memorandum nor this reasonable cause is appropriate. For example, the Housing provider's occupancy policies memorandum implies that the Department if a mobile home is advertised as a two- will determine compliance with the fair are reasonable. bedroom'' home, but one bedroom is Housing Act based solely on the number of extremely small, depending on all the facts, Other relevant factors people permitted in each bedroom. Indeed, it could be reasonable for the park manager Other relevant factors supporting a as we stated in the final rule implementing to limit occupancy of the home of two reasonable cause recommendation based on the fair Housing Amendments Act of 1988, people.

10 The conclusion that the occupancy policies the Department 's position is as follows: are pretextual would include evidence that [T]here is nothing in the legislative history Age of children the Housing provider has: (1) made which indicates any intent on the part of The following hypotheticals involving two discriminatory statements; (2) adopted Congress to provide for the Development of Housing providers who refused to permit discriminatory rules governing the use of a national occupancy code. * * * three people to share a bedroom illustrate common facilities; (3) taken other steps to On the other hand, there is no basis to this principle. In the first, the complainants discourage families with children from living conclude that Congress intended that an are two adult parents who applied to rent a in its Housing ; or (4) enforced its occupancy owner or manager of dwellings would be one-bedroom apartment with their infant policies only against families with children.