facility or that he had a firm plan or program for operating the facility.
The Court acknowledges the City's stated concerns, but finds them to have been a pretext. If the City's true concerns were with Baxter's qualifications or his lack of a firm program or plan, it could have continued the Zoning Board or Council hearings, or both, and given Baxter an opportunity to respond to these concerns. The evidence, however, was substantial that both the Zoning Board and the City Council focused on the perceived threat of HIV and voted accordingly. That the City's actions were based on fear of HIV, and not a legitimate zoning interest, is further supported by the fact that although the two 6th ward aldermen were in favor of the special use permit and moved for its passage, they were out-voted by the Council. The City's witnesses, Baum and Mabry, both testified that they could not recall that ever happening before. Furthermore, no zoning ordinance was cited by the City as a basis for its action.
The final prong of the Arlington Heights analysis is the nature of the relief which the plaintiff seeks. Unlike the situation in Resident Advisory Board v. Rizzo, 425 F. Supp. 987, 1018 (E.D. Pa. 1976) modified, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 55 L. Ed. 2d 499, 98 S. Ct. 1457, 98 S. Ct. 1458 (1978), cited in Arlington Heights, 558 F.2d at 1291, Baxter is not seeking to compel the City to build public housing for HIV-positive persons, he seeks to be allowed to use available housing provided by him exclusively for a residence for this handicapped group.
Under the Arlington Heights analysis, the Court finds that plaintiff is likely to succeed on the merits of his impact claim.
4. Exclusion Pursuant to § 3604(f)(9)
The City asserts that its actions did not violate the FHA because they were made in accordance with the provisions of § 3604(f)(9). That section provides: "(9) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." The City contends that Our Place constitutes a direct threat to the health or safety of others. In support thereof the City cites the fact that 301 South Illinois is across the street from a junior high school and near a grade school. In addition, the City focuses on the fact that HIV can be transmitted by illegal drug users, a group specifically excluded from the definition of handicap under § 3602(h).
The Court has found, supra, that the scientific and medical authority is that HIV-positive persons pose no risk of transmission to the community at large. The City has asserted that the risk of secondary infections, to which the HIV-infected individual is subject, pose a substantial health risk. However, of the secondary infections, only MAI is transmissible to the community at large (See discussion, supra). Standing alone, this is an insufficient health concern to warrant the City's refusal to allow Baxter's special use under the exclusion of § 3604(f)(9). Furthermore, the fear that intravenous drug users would pose a threat to the community, under the facts of this case, is unfounded. Baxter testified that he would, through a screening process, not accept current illegal drug users as residents at Our Place. Therefore, the Court finds that the exclusions of § 3604(h)(9) do not support the City's actions.
5. Likelihood of Success Under § 3617
The Court has previously found that Baxter has standing under § 3617. Under the provisions of that section of the Act, the Court finds that the evidence supports Baxter's assertion that the City's refusal to allow his requested special use permit constituted an interference with the exercise of his rights under § 3604, as well as the potential interference with the rights of HIV-positive persons to a dwelling of their choice. Therefore, the Court finds that Baxter is likely to succeed on the merits of his § 3617 claim.
6. Baxter's Equal Protection Claim
As stated earlier, there is a well-established judicial preference to avoid unnecessary constitutional rulings, Singleton, 428 U.S. at 124. Therefore, as the Court has determined that Baxter is entitled to injunctive relief on his statutory claims, it makes no determination as to the merits of his Equal Protection claim.
C. REMAINING INJUNCTIVE RELIEF STANDARDS
1. NO ADEQUATE REMEDY AT LAW RESULTING IN IRREPARABLE INJURY
The Seventh Circuit has held that the traditional showing of irreparable harm is not required when the plaintiff seeks equitable relief to prevent the violation of a federal statute which specifically provides for injunctive relief. See, Illinois Bell Telephone Co. v. Illinois Commerce Comm., 740 F.2d 566, 571 (7th Cir. 1984), and cases cited therein. Under the FHA, injunctive relief is available pursuant to § 3613(c). That section provides:
(1) In a civil action under subsection (a) of this section, if the court finds that a discriminatory housing practice has occurred or is about to occur, the court may award to the plaintiff actual and punitive damages, and subject to subsection (d) of this section, may grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate).
Therefore, because the Court has found that plaintiff is likely to succeed on the merits of his discriminatory housing claim under § 3604, the plaintiff need not show irreparable harm.
2. BALANCE OF HARMS
Baxter must also show that the threatened harm to him outweighs the harm the injunction may have on the City. As stated earlier, because Baxter has a strong likelihood of success on the merits, the balance of harms need not weigh heavily in his favor. Roland, 749 F.2d at 387.
The alleged harm to the City is based on the risk of transmission of the HIV infection if the residence were allowed to open. The Court finds that this perceived risk is insufficient to outweigh the harm to Baxter if he were to continue to be unable to open Our Place.
3. PUBLIC INTEREST
Baxter must finally show that if the injunction were to issue it would not harm the public interest. It has been noted that this determination is linked to the factor of the balancing of hardships. Dolton, 694 F. Supp. at 448. As the Dolton court stated, "public concern for safety is a legitimate factor to be considered by a court, but only if the concern is rationally based." Id. Here, the public concern for safety is based on the misperception that HIV-positive persons pose a risk of transmission to the public at large. As stated by the Supreme Court in Arline, "the isolation of the chronically ill and of those perceived to be ill or contagious appears across cultures and centuries, as does the development of complex and often pernicious mythologies about the nature, cause, and transmission of illness." 480 U.S. at 284 n. 12.
The Court finds that the public interest can best be served if discriminatory actions based on irrational fears, piecemeal information and "pernicious mythologies" are restrained.
The Court, therefore, GRANTS Baxter's motion for a preliminary injunction as provided below. In so doing, the Court exercises its equitable powers to prevent the City from continuing a discriminatory practice that is based, almost exclusively, upon misapprehensions about the spread of the fatal HIV infection. The Court is cognizant of the strong public concern with the transmission of a fatal disease for which no cure exists. However, the fear of transmission into the general populace is unwarranted, particularly when that fear is based on the belief that someone with HIV merely living in the same area poses a risk to the health and safety of the community. Irrational hysteria and public panic cannot support activity that violates the FHA and is clearly discriminatory. However, the Court is concerned that all interests be protected, and, therefore, GRANTS the motion for a preliminary injunction as follows:
1. The defendant, City of Belleville, is hereby preliminarily RESTRAINED and ENJOINED from refusing to issue to plaintiff, Charles Baxter, a special use permit for the residence at 301 South Illinois Street as a residence for HIV-infected persons.
2. The City of Belleville may establish reasonable restrictions as related to the issues of sanitation and non-admission of current illegal drug users as residents as conditions of said special use permit.
3. The City shall hold a hearing within ten (10) days of the date of this Order to establish the restrictions as provided in paragraph 2, and shall issue a special use permit within seven (7) days thereafter.
4. The Court deems security for costs unnecessary in this case because of the strong likelihood that plaintiff will succeed on the merits of his claim. Therefore, the security required by Fed. R. Civ. P. 65(c) is hereby WAIVED.
5. This preliminary injunction shall become a permanent injunction within sixty (60) days, absent the filing of an appeal or request for trial.
IT IS SO ORDERED.
DATED: 25 August, 1989
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