FHA Emotional Support Animals

Quick Hits – ADA and FHA cases of note

January 6, 2023 By Richard Hunt in Accessibility Litigation Trends, ADA - serial litigation, ADA - Standing, ADA Attorney's Fees, ADA Internet Web, ADA Mootness, FHA Emotional Support Animals, FHA Policies Tags: ADA defense, anti-injunction act, FHA Defense, Jane Boyle, Sam Lindsay, Segovia v Shahrukh, sober living homes

scupture of Janus, the Roman god Janus, the two headed god that looked to the future and past and gave us the name for January, wouldn’t find much new in the world of disability law if he were contemplating 2023. Cases from the last few weeks look pretty much like cases from the end of 2021 and the end of 2020. Serial ADA litigation is going strong because outcomes depend on the judge assigned rather than the law or the facts. Sober living homes continue to create hostility and litigation as politicians try to balance doing the right thing against the demand of their constituents that they do the wrong thing. And, of course, the cost of victory is often much higher than the value of what the plaintiff or defendant wins. Here’s a roundup of the latest cases.

FHA cases are fact driven

Amber Reineck H. v. City of Howell, 2022 WL 17650471 (E.D. Mich. Dec. 13, 2022) is a meticulously written decision to which I cannot do justice in a quick hits review. There is one global takeaway from various grants and denials of summary judgment: claims for discrimination under the FHA, especially accommodation discrimination, depend very much on the particular facts of the case. A third of the lengthy opinion is devoted to the facts, and the claims on which summary judgment was granted were claims on almost purely legal issues like immunity.

The case does perpetuate an important error in the comparison of single family residences to group homes of any kind. Following the Supreme Court’s lead in Village of Belle Terre the Court assumes that single family zoning promotes various important neighborhood values while avoiding problems associated with groups of unrelated individuals living together. Based on this assumption the Court finds that a single family unit is not properly comparable to the unit make up of unrelated disabled residents of a group home. Instead, the comparator is unrelated non-disabled residents of a boarding house or similar business. In 1974, when Village of Belle Terre was decided, it might have still been arguable that single-family neighborhoods were stable places were neighbors were friends, streets were quiet and two cars was the norm. The fragmentation of family structures, changes in culture that lead to extended families occupying a single residence and increased turnover in traditional neighborhoods have made the stereotype of a single family neighborhood obsolete. It is also far from clear that the values associated with single family neighborhoods are the result of family structure as opposed to low population density. In short, whether single family zoning promotes the various values extolled by Village of Belle Terre is a question of fact, not a matter of law, and cities that zone based on family relationships rather than density should be required to prove that who is related to whom in a home has a rational relationship to any legitimate social value.

Know your judge when it comes to tester standing

For those keeping score motions to dismiss almost identical complaints filed in the Northern and Western Districts of Texas have reached very different results. In Segovia v. Shahrukh & Shahzeb Inc., 2022 WL 17566267 (N.D. Tex. Dec. 9, 2022) Judge Jane Boyle joined Judge Sam Lindsay in finding that the standard form complaint used by a group of lawyers and their clients was inadequate. Judge Boyle granted leave to amend, so the case isn’t over, but in past cases Segovia and his lawyers have not been able to substantively improve their complaint. As I noted in my last blog, the opposite result was reached in Castillo v. Sanchez et al, 2022 WL 1749131 (W.D. Texas, Dec. 6, 2022) based on an almost identical pleading. District Court decisions are not binding on anyone, including the judge who wrote them, so any strategy concerning the defense of a serial ADA case has to start with knowing the judge.

Calcano bears fruit

If you haven’t been thinking every day about the decision in Calcano v. Swarovski North America Limited you’ll find a review at A short sharp shock – the end of the beginning for serial ADA lawsuits? Judge Andrew Carter found the plaintiff’s allegations in Matzura v. Macy’s Inc., 2022 WL 17718335 (S.D.N.Y. Dec. 15, 2022) and Murphy v. Regal Cinemas, Inc., 2022 WL 17821218 (S.D.N.Y. Dec. 20, 2022) were just as deficient as those in the consolidated Calcano cases and dismissed for lack of standing. Judge Laura Swain did the same in a different Calcano lawsuit, Calcano v. Jonathan Adler Enterprises, LLC, 2022 WL 17978906, at *2 (S.D.N.Y. Dec. 28, 2022). ADA claims based on inaccessible gift cards are meritless for other reasons¹ but standing holdings have a broader impact because they can influence all serial ADA claims, making these dismissals significant for other victims of serial litigation, at least in the 2nd Circuit.

The race to the courthouse – the Anti-Injunction act doesn’t help the loser.

James v. Tanigpahoa Parish., 2022 WL 17830464 (E.D. La. Dec. 21, 2022) is a reasonably common kind of case. After some back and forth with a sober living home operator the local government filed suit in state court to enjoin the operation because it did not have required permits. State courts typically favor local government and oppose sober living for political reasons and in this case the court entered the requested injunction. The plaintiffs, who were residents of the sober living home, filed suit in federal court asking that the federal judge enjoin the parish from enforcing its injunction. Enter the Anti-Injunction Act, 22 U.S.C. §2283, which bars federal courts from interfering in state court proceeds except in a few limited situations. None of the exceptions were found to apply, which is the usual outcome in FHA cases of this kind. For FHA plaintiffs dealing with municipalities, HOAs and others the message is clear. File first in federal court or, in all likelihood, lose in state court. For defendants the message is file first and ask questions later.

Pushmi pullyu – when is an accommodation unreasonable?

pushmi-pullyu animal from Dr. Doolittle movie

Speaking of two faced, or two-headed animals, in The Story of Doctor Doolittle the pushmi-pullyu is an animal (a llama it appears) with two heads and no rear that can only go in the direction one head faces if the other head backs up. Because the accommodation provisions of the FHA require preferential treatment to create equality of opportunity pushmi pullyu situations are not unusual. One tenant’s emotional support animal may be an annoyance to the neighbor with allergies, for example. Accessible parking creates exactly this kind of problem, as shown in Hume v. Guardian Mgt. LLC, 2022 WL 17834397 (D. Or. Dec. 21, 2022). An accessible parking space necessarily takes almost two ordinary parking spaces because of the required access aisle. If an apartment building does not have sufficient covered parking for all tenants, and has already allocated accessible spaces to other tenants, creating a new accessible space will come at the expense of the two tenants who already occupy the required spaces or at the expense of another disabled tenant whose accessible parking space is taken away from them. In this case the Court found the requested accommodation was not reasonable because taking away an existing tenant’s parking space was an undue burden on the landlord. If that seems like an easy conclusion remember that many accommodations have some negative impact on other tenants and while the FHA requires that housing providers make accommodations, it doesn’t require other tenants to do so. For more about this you can read my blog The horns of a dilemma – landlords, tenants and emotional support animals under the FHA.

The plaintiff who won everything and got nothing

When a defendant defaults the Court can enter judgment for exactly what the plaintiff includes in the prayer for relief in their complaint, but nothing more. In Hull v. Little, 2022 WL 17818065 (9th Cir. Dec. 20, 2022) the Court did just that. The plaintiff asked for an order requiring the defendant to remediate parking and other architectural barriers but did not ask that the court impose any deadline on the work. The district court gave the plaintiff what he asked for in terms of remediation but included no deadline. The plaintiff asked the Ninth Circuit to fix his mistake, which it declined to do, leaving the plaintiff with an meaningless order.²

The defendant who won and had to pay for it

In Simpson v. CHS, Inc., 2022 WL 17986795, (D. Mont. Dec. 29, 2022) the winning defendant in a Title III case was unable to persuade the judge that the plaintiff should pay costs, which are ordinarily granted to the winning party. The opinion explains why, but I looked a little deeper to understand how a case in which the defendant admitted liability and won based on mootness could include depositions and a transcribed video conference. It turns out the victory was in part based on a technicality. The problems identified in the Complaint were fixed and even though others may have existed the plaintiff was limited to those in the Complaint. There was also disagreement about what was fixed and it took a deposition to get the plaintiff to agree that things were fixed. In other words, it was a hard fought case and although it failed it was not without merit when filed. Under the Supreme Court’s decision in Buckhannon Bd. and Care Home, Inc. v. W. Virginia Dept. of Health and Human Resources, 532 U.S. 598, 600 (2001) even if the plaintiff’s lawsuit results in the desired change the court cannot award attorneys’ fees if there is no final judgment in the plaintiff’s favor. The only “reward” the court can give the plaintiff for filing suit is declining to make them pay the defendant’s costs. This gives plaintiffs’ attorneys an incentive to continue litigating even after the defendant has remediated everything in the original complaint. That doesn’t mean that such litigation should be common. Looking from the outside in it seems that a defendant willing to fix everything and a plaintiff who wants it fixed should be able to make a deal early in the lawsuit before either side has spent a lot on lawyers. Maybe that wasn’t possible in this case, but it is worth considering for any defendant who gets to the end of the road with a bunch of fees paid their own attorney and not even the consolation of being reimbursed for costs. In this as in many other cases it looks like the primary beneficiary of the lawsuit was the lawyers; this case was unusual only in that it was only the defendant’s lawyers who benefitted.

A note for website owners: mootness starts before you get sued.

Mootness is the best and strongest defense to a Title III ADA claim because, as described in the entry above, if the facility is made accessible the case must be dismissed and the plaintiff gets no attorneys’ fees. The problem is proving the claim is really moot. Where the change is physical courts generally have no problem finding that the situation isn’t likely to recur, but when the change is to an ever-changing website the burden of showing the fix will last becomes much higher. In Langer v. Home Depot Product Authority, LLC., 2022 WL 17738728 (N.D. Cal. Dec. 16, 2022) Home Depot was able to meet that burden because it had a policy of close captioning all of its videos before it was sued and it quickly fixed the one video that slipped through after it was sued. If the policy had been adopted after the lawsuit was filed or there had been more than one uncaptioned video the result would likely have been different. Now is the time to adopt and implement an accessibility policy for your website – after you are sued it may be too late.

We apply the law, but we don’t have to obey it.

I noted Kulick v. Leisure Village Association, Inc., 2022 WL 17848939, at *4 (Bankr. App. 9th Cir. Dec. 16, 2022) mostly for the following striking statement:

The Americans with Disabilities Act does not apply to the federal courts. See Roman v. Jefferson at Hollywood LP, 495 F. App’x 804, 806 (9th Cir. 2012) (“While the [ADA] requires state courts to make disability accommodations, the ADA does not apply to federal courts.”)

Federal court houses are covered by the Architectural Barriers Act, but the federal courts themselves need not comply with any federal accessibility law.

The cost of default

In Trujillo v. 4B Mkt. Inc., 2022 WL 17667894, (E.D. Cal. Dec. 14, 2022), report and recommendation adopted, 2022 WL 18027841 (E.D. Cal. Dec. 30, 2022) it was about $3700 in fees and costs plus $4000 in damages and an injuction to fix what had to be fixed regardless. It’s hard to imagine a cheaper settlement given the Unruh Act’s statutory damage provision.

No supplemental jurisdiction here

Gilbert v. Bonfare Markets, Inc., 2022 WL 17968629 (E.D. Cal. Dec. 27, 2022) is another example of a judge who is fairly hostile to serial litigants and will not, in all likelihood, exercise supplemental jurisdiction over Unruh Act claims. Great if you are a defendant in this particular court, but remember that other judges take the opposite approach. Know your judge.

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¹ See my blogs Blogathon – ADA and FHA cases with a little help from my friends. and Quick Hits – Vernal Equinox edition for a very brief history of gift card accessibility litigation.

² I found the appeal puzzling because many ADA plaintiffs show little concern for anything that happens after they get an award of fees. In this case no fees were awarded; in fact, none were requested even though the plaintiff was represented by counsel. Why no request for fees? I couldn’t find a clue in the District Court’s file.

What’s bugging HUD – the latest HUD actions based on disability

July 26, 2022 By Richard Hunt in Accessibility Litigation Trends, FHA, FHA Emotional Support Animals, FHA Policies, FHA Regulation, Landlord-tenant, Policies and Procedures FHA ADA Tags: Emotional Support Animals, FHA Defense, HUD charge of discrimination, HUD disability discrimination, service animals

Seal of the Dept of Housing and Urban Development. HUD’s press releases are interesting reading, not because they help you understand the law, but because they help you understand what HUD thinks the law is, and because they are often object lessons in mistakes no housing provider should make. This is a round up of press releases in the last four or five months, each of which has its own lesson to teach. I’ve also included a discussion of HUD’s guidance on animal accommodations at the end based on Bill Goren’s recent blog on the subject.

Conditions on an animal accommodation are o.k., but there are limits.

HUD has charged an HOA in Wyoming with discrimination because while a housing provider like an HOA can impose reasonable conditions on an accommodation, it cannot impose unreasonable conditions. See. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_134 It’s worth taking a look at where this HOA went wrong, at least as HUD sees it, so others can avoid the same mistakes.

The first problem was the HOA’s evident hostility toward requests for accommodation for animals of all kinds. Instead of just asking homeowners who required an accommodation to request one, the HOA made a point of noting that it is a criminal violation of Wyoming law to misrepresent a service animal and specifically noting that other residents “do not like to see dogs” in the development. There is nothing wrong with a no-pets policy, but evident hostility towards those with disabilities is an FHA violation.

A second problem was inflexible demands for documentation in a specific form. Housing providers can request that a specific form be used for an accommodation request, but if the request comes in some other form it has to be evaluated in just the same way as a request on the right form. The specific requirements imposed by the HOA concerning the kind of information it needed were probably reasonable, but insisting that only a particular form be used to provide the information will never be acceptable to HUD.

Third, and probably most important, the HOA decided to retaliate against the complaining parties when they filed a complaint with HUD. As soon as the complaint was filed the HOA sent a letter to all residents criticizing the complaining parties for filing the complaint and suggesting that they lied about the status of their dogs. Nobody likes being on the receiving end of a HUD complaint, but the place to fight back is the investigation or litigation, not a public forum or some kind of public shaming. No matter how annoyed a housing provider is by a complaint that is or seems to be unjustified it will always be illegal to retaliate in any way. In fact, many complaints that originally had no merit at all turn into to very strong retaliation claims because of the response of the housing provider. It isn’t clear from the HUD charge of discrimination whether the HOA was represented by counsel, but an experienced FHA lawyer would certainly have advised them that they were going to have problems with HUD if they behaved as claimed in the charge of discrimination.

Being an awful person is likely to lead to a HUD charge or fine.

In early July HUD announced a $70,000 fine against a landlord who allegedly refused to rent to a family because their daughter had cerebral palsy and who had a history of posts on social media that expressed a prejudice against all children. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_131 The landlord didn’t appear to defend himself, so we only have HUD’s side of the story, but the lesson is clear. It isn’t against the law to be an awful person and hate people because they are disabled, but it is against the law to act out your awfulness as a landlord or housing provider. Landlords and other housing providers make mistakes, often because HUD’s internal standards don’t make any sense at all or because they don’t understand the law. There is, however, a difference that should be obvious to most people between a mistake and outright intentional discrimination.

Along the same lines, HUD resolved a charge of discrimination against a condominium management company that refused to waive its two person per bedroom limit for a family that needed temporary housing while one of the children had a bone marrow transplant. This was a settlement and we don’t know the management company’s side of the story, but it cost them more than $35,000 plus whatever they spent on lawyers after the complaint was filed. Reasonable occupancy limits are not discriminatory, but when a disabled child requires an accommodation landlords and HOAs need to think carefully about the optics and cost of refusal. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_109

Being awful plus a mistake? There’s a lesson here.

On July 1 HUD announced a conciliation agreement with a landlord that allegedly engaged in race and disability discrimination. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_122. Once again we only know HUD’s side of the story, but the disability discrimination claim is based on a situation that comes up all the time. The disabled tenant asked for a reserved parking space, presumably to shorten the distance from their parking space to their front door. The landlord refused, probably because of a no reserved parking policy. Providing a reserved parking spot is one of those accommodations that HUD, DOJ and the courts will almost always consider reasonable. There may be room to argue about whether the tenant is disabled or has a disability related need, but otherwise a refusal to provide reserved parking for the tenant is likely to trigger a finding of cause.¹

Service animal issues again, and the cost of being the bearer of bad tidings

HUD issued a charge of discrimination against a landlord and their leasing agent with disability discrimination because they refused to allow a blind woman’s guide dog due to a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_087 This isn’t even a close call for a reasonable accommodation, but what apartment and HOA managers need to note is that the leasing agent was also charged even though it doesn’t appear she did anything but relay the owners’ position on the lease. I’ve blogged about this before² and the lesson is worth repeating. If you are a leasing agent or manager and your owner insists that you carryout their discriminatory orders your best bet is to quit because otherwise you may have personal liability.

Design/build liability – reasonable modification for out-of-compliance buildings.

I recently settled a small dispute with a landlord that wanted a tenant to pay for the curb ramp needed for them to access their apartment. The landlord messed up, but their lawyers knew that when an apartment complex is covered by the FHA design/build standards then modifications to make it meet those standards are at the landlord’s expense. This isn’t an uncommon problem it seems since HUD just resolved a similar dispute with property owners in Hawaii. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_080 The rules are not complicated, but if you aren’t sure talk to a lawyer before you turn down an modification request. Here they are:

For housing built before the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications.
For housing built after the effective date of the 2008 FHA Amendments the tenant bears the cost of accessibility modifications if they are something in addition to what the FHA standards require.
For housing built after the effective date of the 2008 FHA Amendments the landlord bears the cost of accessibility modifications needed to bring the property into compliance with the FHA standards.

This last point applies even if the current owner is not liable for the original failure to build the apartments correctly. Another a good reason to require an accessibility survey before acquiring multi-family housing.

HUD believes in the interactive process – so should you.

HUD issued a charge of discrimination against a landlord and management company for refusing to even consider an accommodation for an “assistance animal” that would have violated a no pets policy. https://www.hud.gov/press/press_releases_media_advisories/HUD_No_22_078 What stands out in this case is that the owners did not even start the accommodation process. I have real doubts about whether most or any assistance animal (as opposed to service animal) claims are legitimate because there is essentially no scientific support for the notion that emotional support animals provided needed help to those with various mental health disabilities. I’ve also found that most of the individuals requesting an accommodation for an emotional support animal are probably not suffering from a mental disorder that constitutes a disability. Having said that, refusing to even look at an accommodation request is going to trigger a charge of discrimination in every case. Refusing to engage in the “interactive process” is not discrimination according to the courts, but HUD believes it is and it is a long and expensive road from dealing with a charge of discrimination before HUD and finding a federal court that applies the law as written.³

Just how much deference should the courts give HUD’s guidance on assistance animals.

Bill Goren just blogged on the technical issue of the degree of deference courts should give HUD’s guidance on assistance animals (4) which reminded me of a general misunderstanding of reasonable accommodation law that lies behind some of the cases above. Bill asks the specific question of whether HUD’s belief that breed restrictions are not a valid reason to deny an accommodation would be deferred to by the courts. Breed restrictions get a lot of attention in the animal accommodation world, but the discussion usually misses the point. A breed restriction is just another rule that might have to be waived as a reasonable accommodation, and there is no such thing as a generic dangerous dog. Pit bulls may be more dangerous or aggressive than other breeds in general, but the only pit bull a landlord will be asked to accommodate is the specific pit bull belonging to a disabled resident. If it is a sweetheart then the characteristics of the breed don’t matter. I advise my clients to interview the dog as part of the accommodation process. If it barks and snaps at a stranger it might be dangerous regardless of its breed and if it is calm and placid the opposite is true. In addition, it is always possible to put conditions on an accommodation if necessary to make it reasonable. Just because a dog is allowed despite a no pets policy the landlord isn’t required to let it or the owner do anything they want. With rare exceptions you can require a dog to be on a short leash, only be in specific areas outside the apartment, not make noise or disturb the neighbors and so forth. Every accommodation request has to be determined based on the specific circumstances, including the nature of the disability, the behavior of the dog, the kinds of places the dog may need to go, or not need to go, in order to fulfill its function, and so on. When HUD says things like a landlord cannot impose breed restrictions or cannot charge a pet deposit HUD is making the same mistake landlords who impose hard and fast rules on accommodations make; that is, it is failing to recognize that the principle of reasonable accommodation is always based on balancing the tenant’s need against the landlord’s responsibilities and needs in an effort to find a compromise that works for everyone involved. Given the huge diversity of disabilities and disability related needs trying to impose hard and fast rules on accommodations is absurd. Bureaucrats and businesses both love rules, but this is a situation in which rules just cause problems.

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¹ There is a difference between parking

² See, Shoot the messenger! Agent liability under the Fair Housing Act

³ I’ve blogged about recent cases holding that failure to engage in the interactive process is not itself actionable discrimination. FHA and ADA Odds and Ends

(4) See, Upon Further Review, the HUD Circular Just Might Survive Kisor as well as EPA v. West Virginia and be Given Judicial Deference I have blogged on this issue as well. See, Auer deference and the Fair Housing Act – does Kisor change anything?

Quick Hits – If you’re going through hell edition.

June 17, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - serial litigation, ADA Attorney's Fees, ADA Internet Web, ADA Litigation Procedure, ADA service animals, ADA Vending Machines, ADA Web Access, FHA Emotional Support Animals, HOA, Public Facilities, Reasonable accommodation, Rehabilitation Act Tags: ADA class actions, ADA defense, ADA Mootness, FHA Defense, nexus requirements, self-service kiosks, standing to sue, William Goren

Dante’s hell was a complicated place, as this map by Botticelli suggests. Although Rodney Atkins’ advice “if you’re going through hell, keep on going” appears sound, winding through all the complexities of the ADA and FHA can seem like descending through all nine levels of hell. Nonetheless, I’m happy to act on a temporary basis as Virgil and see how far we can get. No promise about whether we’ll find a Beatrice to take you to Paradise. More

ADA and FHA Quick Hits – it could be worse edition

March 10, 2022 By Richard Hunt in Accessibility Litigation Trends, ADA - drive-by litigation, ADA - Hotels, ADA - Standing, FHA, FHA definition of handicap, FHA Emotional Support Animals, HOA, Uncategorized Tags: ADA defense, Emotional Support Animal, FHA Defense, serial litigation

Pictures of bombed out buildings and civilian casualty counts are a reminder that aggravating and expensive as ADA and FHA lawsuits can be, taking these disputes to court is a luxury most people in the world do not enjoy. For those of us who can engage in a civilized discussion of legal issues, here are the latest cases and other news. You’ll see where I think the courts and administration have gone wrong, but I’d rather be here than most of places in the news these days.

HUD and DOJ pushing hard on ESA cases.

Quick Hits – HUD and DOJ are on a roll with FHA complaints

October 8, 2021 By Richard Hunt in Accessibility Litigation Trends, FHA, FHA design/build litigation, FHA Emotional Support Animals, FHA Training Tags: DOJ FHA litigation, FHA Defense, HUD complaint

Fist with label Quick Hits My next Quick Hits blog will discuss federal court decisions in the last month; this special is about only one thing – HUD’s very active enforcement activities concerning the Fair Housing Act, especially with respect to disability rights claims. Here are the press release headlines from September 1 to the present:

HUD AWARDS OVER $47 MILLION TO FIGHT HOUSING DISCRIMINATION

These grants go to local organizations that file FHA lawsuits, engage in FHA testing, and help process FHA Complaints. Most of the money is going to organizations that conduct testing campaigns in which they either expose discrimination or trap innocent landlords using calculated deception, according to how you view tester tactics. It may be a little of both since not all organizations are equally committed to fairness in fair housing. It is telling that litigation related activities will get three times as much money as education related activities. HUD seems to be more interested in punishing landlords than in helping them understand the law. This is an attitude left over from the decades in which most FHA complaints were based on obviously wrong conduct in the form or racism. Disability discrimination is far more difficult for landlords to understand because it is usually in found in failures to grant modifications or accommodations in situations where the morally correct choice is not necessarily the same as the legally correct response. HUD might take note that the education to enforcement ratio is backwards in an era where most claims arise out of ignorance rather than obviously evil conduct. If you are a landlord or HOA you need to be aware that more money means more testing, so you need to be careful in dealing with callers who claim to have a disability or fall into a protected category under the FHA. They really are out to get you. More

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