sprinklers. This Court does not agree.
Westchester has adopted the definition that family is a group of people related by blood, marriage or adoption. (See Plaintiffs' 12M, P 28). However, the BOCA Code also considers one adult to constitute a family,
and Westchester admits that village code allows for three lodgers or boarders to reside with a family in a single family residence. Given that one adult constitutes a family and three lodgers are permitted per family, it is clear that up to eight
unrelated, non-disabled adults occupying the Westchester Dwelling would not trigger these safety requirements. The Westchester code makes no provision for group homes like the CILAs at issue, and provides no evidence that it has ever imposed these safety requirements on similarly situated, non-disabled adults.
The Court finds that under these circumstances, the imposition of safety requirements for non-single family residences on the Westchester Dwelling is unreasonable and unnecessary. As discussed above, waiving the sprinkler requirement has not been argued or shown to increase the risk to the safety of either the Plaintiff residents or the community as a whole. In addition, the Court finds significant the fact that the Illinois State Fire Marshall memorandum highlighting the policy change in the 1994 Life Safety Code provides that small board and care homes with eight or fewer residents do not need to have a sprinkler system as long as they have a prompt evacuation capability. (First Amended Complaint, Exh. 3). The undisputed facts of this case reveal that the Westchester Dwelling has more safety features than the average single family dwelling and the residents have better evacuation training than most similarly situated citizens. Under these circumstances, the Court finds that waiver of the sprinkler requirement is a necessary accommodation to ensure that Plaintiffs will have an equal opportunity for housing.
For these reasons, the Court finds that there are no genuine issues of material fact and that Plaintiffs are entitled to summary judgment on the issue of liability. Therefore, the Court recommends granting Plaintiffs' motion for summary judgment to the extent that such judgment is modified by the following analysis regarding Defendants' motion for summary judgment.
2. Defendants' Motion For Summary Judgment
Defendants seek summary judgment as to Count I - Discrimination and also seek summary judgment on both counts as to Sinde. The Court finds Defendants' motion relevant in two respects.
First, in Count I - Discrimination, Plaintiffs seek damages based on Defendants' alleged violations of various sections of the FHA. The Court finds that the undisputed facts do not support such claims based on Sections 3604(c) and 3617.
Specifically, Section 3604(c) is completely inapplicable to this case. Plaintiffs have not shown any printed or published notice, statement or advertisement relating to the "sale or rental of a dwelling" attributable to the Defendants which indicates any preference, limitation, or discrimination on the basis of handicap as required under Section 3604(c). In fact, the only "published" statement concerned Sinde's comments about the need for a sprinkler system.
The publication was a newspaper's, not the Village's nor Sinde's. At most these statements evidence misunderstanding and, perhaps, ignorance - not discriminatory intent; further, this was not made in relation to the sale or rental of property. It was made by a Village official concerning a Village decision about the interpretation of Village ordinances.
In addition, there are no facts to support Plaintiffs' claim based on Section 3617. Plaintiffs provide no evidence of any coercion, intimidation, threats or interference with Plaintiffs' right to exercise their rights. Again, the statements attributed to Sinde do not evidence threats, intimidation or coercion. There is no evidence that Sinde alone was the decisionmaker or alone influenced the Village Board or that his statements even reflected the opinions of fellow Village Board members. Under these circumstances, these statements do not rise to the level of discrimination required for proof of a violation of Section 3617.
Inasmuch as these claims are unsupported by the undisputed facts, Defendants should be granted summary judgment only as to those allegations in Count I which pertain to discrimination pursuant to Sections 3604(c) and 3617. Defendants' motion for summary judgment should be denied as to the allegations of discrimination based on Section 3604(f)(1)(B) and 3604(f)(2)(B).
Second, the individual Defendant, Sinde, also asserts that the undisputed facts support summary judgment in favor of him as to both Count I and Count II. The Court agrees for the following reasons. First, as discussed above the statements attributed to Sinde do not evidence discrimination - merely misunderstanding and, perhaps, ignorance of developmental disability; which is not actionable since he was acting as one member of the Village Board. There is no allegation nor evidence that Sinde, the individual, made the Westchester Dwelling unavailable to Plaintiffs; discriminated on the basis of handicap; limited or discriminated against Plaintiffs; or interfered with, intimidated, coerced or threatened Plaintiffs. Neither are there allegations that Sinde somehow controlled the Board nor alone made decisions on behalf of Westchester. Every allegation made against Sinde concerned statements he made in his capacity as Westchester Village Board President. There is no evidence that Sinde alone had authority to deny the accommodation or that he influenced the Village Board to deny it.
For these reasons, the Court finds that the undisputed facts provide no basis upon which this Court or any fact-finder could support a finding of individual liability against Sinde. Therefore, the Court recommends that Sinde be granted judgment on both Count I and II as a matter of law.
For the above-mentioned reasons, this Court finds that Count II of the Amended Complaint states a claim, that the undisputed facts show that Plaintiffs are entitled to summary judgment on the issue of reasonable accommodation and that Defendant, John Sinde, is entitled to summary judgment. The Court hereby recommends that Defendants' motion to dismiss Count II be DENIED; that Plaintiffs' motion for summary judgment on the issue of reasonable accommodation be GRANTED; that Defendants' motion for summary judgment be DENIED IN PART and GRANTED IN PART; and that Defendant, John Sinde, be GRANTED summary judgment on all claims.
MARTIN C. ASHMAN
United States Magistrate Judge
Dated: December 29, 1995.
Written objections to any finding of fact, conclusion of law, or the recommendation for disposition of this matter must be filed with the Honorable Wayne R. Andersen within ten (10) days after service of this Report and Recommendation. See FED. R. CIV. P. 72(b). Failure to object will constitute a waiver of objections on appeal.