Did a South Carolina care-facility floor restriction violate fair housing laws for disabled residents?

Plain-English summary

South Carolina’s health agency asked whether a community residential care regulation discriminated against disabled residents under federal and state fair housing laws. The rule placed residents who might need physical or verbal help to exit a building on the floor of exit discharge. In April 2002, the AG predicted that a reviewing court would most likely find no violation. The opinion was a prediction about this regulation, not a court judgment.

The AG considered two approaches used by federal courts: a rational-relationship test and a stricter standard requiring safety restrictions tied to residents’ actual abilities. He concluded the rule would likely satisfy either approach because it addressed evacuation needs in a fire or other catastrophe, rather than a blanket stereotype about a particular disability. The source PDF is a Westlaw reproduction of the letter hosted by the AG’s office.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Care facility operators and residents

The opinion described a rule barring placement above or below the exit-discharge floor for residents who might need help leaving the building. The AG understood it as keyed to actual need for assistance, and predicted that a court would accept its public-safety justification.

Health regulators

The letter said the regulation was reasonably related to the health agency’s statutory authority and enjoyed a presumption of validity. It then analyzed both fair housing standards discussed by federal courts before agreeing with agency counsel’s conclusion.

Common questions

Did the AG say the floor rule was discriminatory?
A: No. He predicted a reviewing court would most likely find no violation of the federal or South Carolina fair housing laws.

Did the rule apply to every resident with a disability?
A: As quoted in the opinion, it applied to residents who may require physical or verbal assistance to exit, rather than all residents with a disability label.

Did the AG consider a stricter fair housing test?
A: Yes. He discussed a test requiring safety restrictions to match particularized needs and predicted the rule would likely satisfy it.

Background and statutory framework

The agency’s regulation governed community residential care facilities. The letter cited the agency’s health-facility rulemaking authority, the federal Fair Housing Act and the South Carolina Fair Housing Law. It compared federal decisions taking different approaches to disability-related housing restrictions and concluded that evacuation safety supplied the relevant justification under either approach.

Citations and references

• § 2301.G: the challenged care-facility placement rule as cited in the source.
• § 44-7-150(3): the health agency’s regulatory authority.
• § 3604(f)(2) and § 31-21-40: federal and state fair housing provisions discussed in the letter.
• Bangerter v. Orem City Corporation: cited for an individualized safety analysis.

Official title

On whether 25A S.C. Code Ann. Regulation 61-84, Section 2301.G constitutes discrimination against the disabled in violation of the federal Air Housing Act and the S.C. Carolina Fair Housing Law.

Requester

Carlisle Roberts, Jr., General Counsel, South Carolina Department of Health and Environmental Control.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-17-2002-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/02/Roberts-C.-4-17-2002-01266537xD2C78.pdf

Original opinion text

Carlisle Roberts, Jr., 2002 WL 735348(2002)

2002 WL 735348(S.C.A.G.)

Office of the Attorney General
State of South Carolina

April 17,2002
Re: Your Letter of January 30,2002 25A S.C. Code Ann. Regs. 61-84,§ 2301.G
*1 Carlisle Roberts, Jr.
General Counsel

South Carolina Department of Health and Environmental Control
2600 Bull Street

Columbia, South Carolina 29201-1708
Dear Mr. Roberts:

In the above-referenced letter, you request an opinion from this Office "... as to whether [25A S.C. Code Ann. Regs. 61-84,§ 2301.G]constitutes discrimination against the disabled in violation ofthe federal Fair Housing Act and the South Carolina Fair Housing Law." The referenced regulation is part of DHECs regulatory scheme related to "Standards for Licensing Community Residential Care Facilities" and provides: Those residents that may require physical or verbal assistance to exit the building shall not be located above or below

the floor of exit discharge.'
By way of background, you have attached a memorandum written by Nancy S. Layman,DHECs Senior Attorney for Health Regulation. In her memorandum, Ms. Layman concludes that "S.C. Code Ann. Regs. 61-84,§ 230l.G violates neither the federal Fair Housing Act nor the State Fair Housing Law...[i]ts purpose is to protect those who need physical or verbal assistance from harm in the event offire or other catastrophe, and it does so in a non-discriminatory manner." Generally, courts, as well as this Office, must as a matter oflaw afford considerable latitude to an agency's discretion in promulgating regulations. See OPS. ATTY.GEN.(Dated August 21,1991 & November 27,1995). Such regulations are deemed to stand unless they are clearly in contravention of or lacking in statutory authority or are inconsistent with the federal or state Constitutions. Id. An agency's regulations carry with them a presumption of validity. U.S.C. v. Batson. 271 S.C. 242, 246 S.E.2d 882(1978). Further, an administrative regulation is deemed valid as long as it is reasonably related to the piupose of the enabling legislation. Hunter and Walden v. S.C. State Licensing Board for Contractors. 272 S.C. 211, 251 S.E.2d 186(1978).

Pursuant to S.C. Code Ann.§ 44-7-150(3), DHEC is authorized to enact regulations to, among other things,"guide the establishment of health facilities and services which will best serve public needs, and ensure that high quality services are provided in health facilities in this State" See S.C. Code Ann. § 44-7-120. Clearly, the regulation in question is reasonably related to the purpose specifically expressed in the enabling legislation by our General Assembly. Accordingly, the regulation is entitled to a presumption of validity. It is with that presumption of validity in mind that this Office must evaluate any challenge to R61-84,§ 2301.G based on a violation of the federal Fair Housing Act and/or the South Carolina Fair Housing Law. Both the federal Act and South Carolina Law prohibit discrimination in housing because of a handicap ofthe occupant or resident(See 42 U.S.C.A. § 3604(f)(2) and S.C. Code Ann.§ 31-21-40). As our State's Fair Housing Law is no more restrictive than the federal Act, my analysis will center on authority related to the latter.

WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works.

Carlisle Roberts, Jr., 2002 WL 735348 (2002)

*2 It appears that federal courts have applied two distinct standards of review in analyzing allegations of violations

of the Fair Housing Act. In Familvstvle of St. Paul. Inc. v. City of St. Paul. Minnesota. 923 F.2d 91 (8th Cir. 1991), the Eighth Circuit Court of Appeals was faced with a challenge to state and local zoning ordinances which limited the placement of residential facilities for retarded or mentally ill persons. In holding that the zoning ordinances did not

violate the Fair Housing Act, the Familvstvle Court determined that the appropriate standard of review was the rational relationship test based on the holding of City of Cleburne v. Cleburne Living Ctr.. 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1975), that the handicapped are not a "suspect class." 923 F.2d at 94. Once a discriminatory effect is

established, the question becomes: does the challenged state action rationally relate to a legitimate government interest? Id.

If, for the sake of argument, it is assumed that R61-84, § 230 l.G has a discriminatory effect, it is clear that the regulation

is not only related to, but advances a legitimate government interest. Therefore, it is my opinion that a reviewing court applying the rational relationship test to a challenge of R 61-84, § 2301.G would most likely find no violation.

Other federal courts have rejected the rational relationship test in analyzing the application of the Fair Housing Act. In Bangerter v. Orem City Corporation. 46 F.3d 1491 (10th Cir. 1995), the Tenth Circuit Court of Appeals held the rational

relationship test to be inappropriate. 2 The Bangerter Court found the failure of the handicapped to be a "suspect class" to be irrelevant as the Fair Housing Act "specifically makes the handicapped a protected class for purposes of a statutory claim." 46 F.3d at 1 503. The Tenth Circuit held that the language of the Act itself required that "any special requirements placed on housing for the handicapped based on concerns for the protection of the disabled themselves or the community

must be individualized] ... to the needs or abilities of particular kinds of developmental disabilities ... [and] ... have a necessary correlation to the actual abilities of the persons upon whom it is imposed." 46 F.3d at 1503, 1504 (citations

and internal quotations omitted).

Even in applying this stricter standard of review, the Bangerter Court recognized that the Fair Housing Act "... expressly

allows discrimination rooted in public safety concerns..." and that the Act permits "reasonable restrictions on the terms or conditions of housing when justified by public safety concerns ..." 46 F.3d at 1503. "Restrictions predicated on public safety [however] cannot be based on blanket stereotypes about the handicapped, but must be tailored to particularized

concerns about individual residents." 46 F.3d at 1503.

The requirements of R61-84, § 230 l.G do not appear to be based on a stereotype or label of a particular handicap or disability. Rather, the regulation appears to apply to a situation where an individual actually lacks the ability to safely

exit a facility in the case of fire or other catastrophe. As such, even if the stricter standard of review is applied, it is my opinion that a reviewing court would most likely find R61-84, § 230 l.G to be a reasonable restriction justified by legitimate public safety concerns.

*3 Based on the foregoing, I concur with the conclusions of Ms. Layman expressed above. It is my opinion that a reviewing court would most likely find that "S.C. Code Ann. Regs. 61-84, § 2301. G violates neither the federal Fair Housing Act nor the State Fair Housing Law."

This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized

by the Attorney General and not officially published in the manner of a formal opinion. Sincerely, David K. Avant

Assistant Attorney General

Footnotes

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<& 2017 Thomson Reuters. No claim to original U.S. Government Works.

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Carlisle Roberts, Jr., 2002 WL 735348 (2002)

A community residential care facility is defined as a facility that represents to the public that it offers a beneficial or protected

1

environment specifically for individuals who have mental illness or disabilities. See 25A S.C. Code Ann. Regs. 61-84, 101.L.

2

See also Larkin v.State of Michigan Department of Social Services. 89 F.3d 285 (6th Cir. 1996); and United States v. Citv of Chicago Heights. 161 F. Supp. 819 (N.D.I1I. 2001).

2002 WL 735348 (S.C.A.G.)

I nd of Document

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fl 201? Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

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