C.F.R. Pt. 35, App. A, at 634 (2012) (“[A]ll governmental activities of public entities are covered, even if they are carried out by contractors.”) (internal quotation marks omitted); Appendix B to Part 35—Guidance on ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services Originally Published July 26, 1991, 28 C.F.R. Pt. 35, App. B, at 661 (2012) (“All governmental activities of public entities are covered, even if they are carried out by contractors.”); TA Manual, 42 U.S.C. § 12206(c)(3), Part II—1.3000 (explaining that private entities may be subject to title II if they, “have a close relationship,” with a public entity). For example, a TA Manual illustration explains that when a private corporation operates group homes for individuals with mental disabilities under contract with a State agency, the State must ensure that its contracts are carried out in accordance with title II. Id. at Illustration Four. Another illustration explains that the State is, “obligated to ensure by contract,” that a privately owned restaurant operating in a State park meets the State’s title II obligations, “even though the restaurant is not directly subject to title II.” See id. at Illustration One. In sum, the Department of Justice interprets the ADA and its Regulations to prohibit title II entities, such as the District of Columbia, from escaping liability for discrimination in services for which it is responsible by contracting away the provision of those services. Case law supports a finding that the District is liable for the discriminatory actions of its contractors. In addition to the clear statements in the Regulations, the Guidance, and the TA Manual, several courts have confirmed that a title II entity is liable for the unlawful actions of private entities with which it has contracted. In Armstrong v. Schwarzenegger, state prison inmates with disabilities were denied accommodations under the ADA and sued the State. 622 F.3d 1058, 1062 (9th Cir. 2010). The
10, 29, 59. Similarly, the District was required to monitor the activities of its contractors to ensure that they comply with all applicable laws. Settlement Agreement ¶ 24(a). The District, therefore, has the right and the obligation to make certain that its contractors provide their services in compliance with title II. This establishes for the purposes of this Motion, an agency relationship, based on the right to control, between the District and its contractors, regardless of the presence of the “independent contractor” label. Deliberate indifference does not require a showing of actual knowledge of the discriminatory acts. The District argues that, “[w]hether the District is deliberately indifferent depends on the District’s knowledge, not what the other Defendants knew or should have known.” Def.’s Mot. Dismiss 6. Proving deliberate indifference requires, “both knowledge that a harm to a federally protected right is substantially likely and a failure to act upon that likelihood.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) (applying deliberate indifference standard from City of Canton v. Harris, 489 U.S. 378, 389 (1988), a § 1983 case, to a title II claim). However, a finding on whether the District was deliberately indifferent, at this stage, is premature. As explained above, a deliberate indifference inquiry should only be employed to determine the availability of compensatory damages. See supra Part IV.C.2.a. Additionally, deliberate indifference is a question of fact, and thus best submitted to a jury. See, e.g., Barnes v. District of Columbia, 793 F. Supp. 2d 260, 284 (D.D.C. 2011) (“[O]rdinarily the question of whether a municipality has a deliberately indifferent policy or custom is for the jury . . . .”). Here Plaintiffs not only seek compensatory damages, but also declaratory and injunctive relief, the availability of which does not rely on a finding of deliberate indifference. First Am. Compl. ¶ 38. While a finding on deliberate indifference, therefore, is not only premature, it would only address compensatory damages and not other relief sought by the Plaintiffs.
made available; or (C) any person associated with that person. (3) For purposes of this subsection, discrimination includes— . . . (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling . . . 42 U.S.C. § 3604(f)(1)-(3). The District argues that Plaintiffs’ FHA claims should be dismissed because: (1) shelters are not “dwellings” under the FHA; and (2) shelter residents are not protected by the FHA because they are not “buyers” or “renters” of dwellings. Def.’s Mot. Dismiss 11-16. As explained below, these arguments are without merit. Shelters are “Dwellings” Under the Fair Housing Act The FHA defines the term “dwelling” to include, “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 42 U.S.C. § 3602(b). This definition is broadly construed to effectuate the purposes of the FHA. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008) (“[T]he Supreme Court has repeatedly instructed us to give the Fair Housing Act a broad and inclusive interpretation . . . .”) (internal quotation marks omitted). The Department of Housing and Urban Development (“HUD”), which shares enforcement authority for the FHA with the Department of Justice, has issued an implementing regulation that expressly states that the term “dwelling” includes accommodations in homeless shelters, defining the term “dwelling unit” to include, “dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons.” 24 C.F.R. § 100.201 (emphasis added). HUD’s regulation is its reasonable interpretation of the Act and is therefore entitled to deference. See Meyer v. Holley, 537 U.S. 280, 287-88 (2003) (explaining that because HUD was, “the federal agency primarily charged with the
and spend[ing] free time together in common areas.” Schwarz, 544 F.3d at 1215; accord Lakeside, 455 F.3d at 159-60. For example, in Woods v. Foster, the court found the term “dwelling” applicable to a homeless shelter. The court explained that the homeless “are not visitors or those on a temporary sojourn in the sense of motel guests. Although the Shelter is not designed to be a place of permanent residence, it cannot be said that the people who live there do not intend to return – they have nowhere else to go.” Woods, 884 F. Supp. at 1173. The court rejected defendants’ contention that the shelter was not a dwelling because occupants’ stays were limited to 120 days, ruling that the length of stay was not the determining factor. “Because the people who live in the Shelter have nowhere else to ‘return to,’ the Shelter is their residence in the sense that they live there and not in any other place.” Id. at 1173-74; see also Jenkins v. New York City Dep’t of Homeless Servs., 643 F. Supp. 2d 507, 518 (S.D.N.Y. 2009) (concluding, on motion to dismiss, that homeless shelters, “could well fall within the definition of dwelling,” where the plaintiff, “intends to stay at the shelter as long as he can, . . . and has no other home to go to.”). So too here. Plaintiffs allege sufficient facts to show that D.C. General Building 12 and the Girard Street Apartments provide temporary housing for those who, “have nowhere else to ‘return to,’” Woods, 884 F. Supp. at 1173, and who treat the shelter “like their home.” Schwarz, 544 F.3d at 1215. With respect to D.C. General Building 12, the First Amended Complaint alleges that there is no, “time limit on how long residents can remain;” that each family has, “their own room,” where “they return...each day, [and] where they keep their belongings;” and that residents are responsible for “cleaning their own rooms.” First Am. Compl. ¶ 43. Similarly, Plaintiffs allege that Girard Street Apartments is a “traditional apartment building, with approximately 20 separate keyed apartment units for residents containing