Saying That the Question Has Been Answered Doesn’t Mean That it Actually Has Been (And it Certainly Doesn’t Mean That its Been Answered Correctly)

Seen just now on Facebook in response to the continuing – and as yet actually unanswered – questions about HB 235′s applicability to homeless shelters.

Equality Maryland   This question has been asked and answered several times. This is in part due to court rulings, but also specifics of the way in which the Maryland law is administered. Each state has its own system of enforcing anti-discrimination laws. As we have indicated, the body that is in charge of enforcing the law has spoken and said that homeless shelters are covered in the state of Maryland.

More con artistry – and it is certainly smellin gas though its from the same con artist.

Lets go through this bit by bit.

 This question has been asked and answered several times.

The mere fact that words are mouthed/typed in response to a question does not mean that the question has been answered.

This is in part due to court rulings, but also specifics of the way in which the Maryland law is administered.

Lets get real: Its because you’ve been called out on your bullshit and you have no rejoinders that aren’t also bullshit.

 Each state has its own system of enforcing anti-discrimination laws.

Technically, an accurate statement - but I can’t think of a one that isn’t ultimately subject to review by the state’s highest judicial body (in Maryland that’s the Court of Appeals, not what some individual with some connection to the Maryland Human Relations Commission may have whispered in your ear between B-14 and o-72 at a session of Drag Bingo.) 

As we have indicated, the body that is in charge of enforcing the law has spoken and said that homeless shelters are covered in the state of Maryland.

I actually haven’t seen that. 

Citation?

Moreover, in most, if not all, states, judicial (as opposed to administrative) courts do tend to pay deference to administrative interpretations of laws – but that deference is not absolute. 

The reality is still thus:  Maryland gays and lesbians, yet again, demand the certainty of statutory specificity for themselves but expect trans people to subsist on pipedreams, wishes and secret handshakes among people whose opinions will, when the time comes, be irrelevant.

12 Responses to Saying That the Question Has Been Answered Doesn’t Mean That it Actually Has Been (And it Certainly Doesn’t Mean That its Been Answered Correctly)

  1. Cathy Brennan says:

    COMAR 14.03.04.03

    (15) “Dwelling” has the meaning stated in Article 49B, § 20(h), Annotated Code of Maryland.

    (16) Dwelling Unit.

    (a) “Dwelling unit” means a single unit of residence for one or more individuals.

    (b) “Dwelling unit” includes:

    (i) A single family home;

    (ii) An apartment unit within an apartment building; and

    (iii) Other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room, portion of the dwelling, or rooms within which people sleep, for example, dormitory rooms, sleeping accommodations in shelters intended for occupancy, and a residence for homeless persons.

    • Katrina Rose says:

      And Mz. Brennan flunks yet another first-year law class while attempting to pull the wool over the eyes of people she thinks that she should have the permanent right to be legally superior to.

      I know its hard for an overpaid, overly-privileged mouthpiece who somehow got through law school without learning that statutes are legally superior to administrative regulations but – and do pay attention because this is the part that matters – statutes are legally superior to administrative regulations.

      For those who might stumble across this particular ENDABlog post without having run across other posts from myself that have already proven why this is also a pipedream, see http://www.pamshouseblend.com/showComment.do?commentId=243252:

      We start, as always, with the language of the statute. The statutory definition of “dwelling” turns on the meaning of the word “residence,” see United States v. Columbus Country Club, 915 F.2d 877, 881 (3d Cir. 1990), but neither the statute nor the regulations define the word. A regulation promulgated by the Department of Housing and Urban Development (“HUD”), however, defines the term “dwelling unit” this way:

      Dwelling unit means a single unit of residence for a family or one or more persons. Examples of dwelling units include: a single family home; an apartment unit within an apartment building; and in other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling, rooms in which people sleep. Examples of the latter include dormitory rooms and sleeping accommodations in shelters intended for occupancy as a residence for homeless persons.

      24 C.F.R. § 100.201 (emphases added). Although this definition provides some examples of dwellings covered by the FHA, it too relies on the undefined word “residence.” Because there is no statutory or administrative definition of “residence,” we look to its ordinary, everyday meaning. See, e.g., Nat’l Coal Ass’n v. Chater, 81 F.3d 1077, 1081 (11th Cir. 1996) (“Terms that are not defined in the statute . . . are given their ordinary or natural meaning.”); see also Columbus Country Club, 915 F.2d at 881 (looking to the ordinary meaning of “residence”).

      Webster’s Third New International Dictionary (2002) defines “residence” as, among other things, “a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit[.]” In other words, as the administrative definition of “dwelling unit” suggests, the house, apartment, condominium, or coop that you live in is a “residence,” but the hotel you stay in while vacationing at Disney World is not. Compare Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036 (2d Cir. 1979) (noting that “dwelling” “clearly” includes “cooperative apartment buildings”), with Schneider v. County of Will, 190 F. Supp. 2d 1082, 1087 (N.D. Ill. 2002) (holding that a bed-and-breakfast is not a “dwelling”); Patel v. Holley House Motels, 483 F. Supp. 374, 381 (S.D. Ala. 1979) (holding that a motel is not a “dwelling”).

      Although the scope of the term “residence” may be clear at the ends of the spectrum, many buildings fall somewhere in between. Nevertheless, we think the differences between a home and a hotel suggest at least two relevant principles: (1) the more occupants treat a building like their home — e.g., cook their own meals, clean their own rooms and maintain the premises, do their own laundry, and spend free time together in common areas — the more likely it is a “dwelling”; and (2) the longer the typical occupant lives in a building, the more likely it is that the building is a “dwelling.”

      So, as I concluded at my comment on the topic at PHB: So, even if this Florida decision, Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214-15 (11th Cir. 2008), somehow becomes binding authority on all federal and state courts in Maryland, the question of whether a particular homeless shelter is a “dwelling” – and, as such, housing – or a non-HB235-ish public accommodation is not even something that can be decided on a blanket basis by the Maryland Human Relations Commission; it is fact-specific to each given case.

      Hey Bug, do you get paid on commission for every time that a transsexual proves that you’re full of shit? And if so, shouldn’t the transsexual get a cut? Mama needs a new Lexus – and just from you, I figure I have two or three coming my way.

      • Cathy Brennan says:

        Wow, you are really actually nasty. I agree with you. Which I said below. And which I asked EqMD to explain a while ago – but I hadn’t seen the references to COMAR in your posts, so I was pasting them here as an FYI, in the interest of keeping a record of what EqMD is basing its positions on (which, again, and as I have said before, I don’t get).

        I’m sorry you are such a bitter asshole now; some day you should learn how to work with people who actually care about these issues – regardless of disagreements on strategy.

      • Katrina Rose says:

        What you call “nasty” I call old, underemployed and faced with statute books across the country that include anti-trans gay rights laws signed off on by people like you.

        When you look at the Maryland statutes and see laws rigged against you by overly-prvileged trans people, then you’ll be an inch or two closer to being even miles away from me giving a microshit about your station in life or your attitude about anything.

        You’re never going to earn any forgiveness from any trans person, but if you want to be useful and try to convince yourself that your worthy of the air you inhale? Start trumpeting your concerns about this latest bogus legal theory to the high gay heavens – but you damn well better acknowdlege how worthless what trans people were given in Maryland ten years ago has been.

  2. Cathy Brennan says:

    .04 Unlawful Practices Generally.

    A. Real Estate Practices Prohibited. In accordance with the Commission’s interpretation of discriminatory housing practices, under Article 49B, § 22, Annotated Code of Maryland, it shall be unlawful for a person to:

    (1) Refuse to sell or rent a dwelling after the making of a bona fide offer, refuse to negotiate for the sale or rental of a dwelling or otherwise make unavailable or deny a dwelling to a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (2) Make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates a preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (3) Represent to a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation that a dwelling is not available for sale or rental when the dwelling is in fact available;

    (4) Induce or attempt to induce for a profit a person to sell or rent a dwelling by representations regarding the entry or prospective entry into a neighborhood of a person of a particular race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (5) Discriminate against a person in making a real estate related transaction available or in the terms or conditions of a real estate related transaction because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (6) Deny a person access to, or membership or participation in, a multi-listing service, real estate brokers’ organization, or other service, organization, or facility relating to the business of selling or renting dwellings, or discriminate against a person in the terms or conditions of access, membership, participation in such an organization or service, or facility because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

    (7) Intimidate or interfere with or attempt to intimidate or interfere with a person intentionally because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation whether acting under color of law, by force or threat of force:

    (a) Because the person is or has been selling, purchasing, renting, financing, or occupying, contracting or negotiating for the sale, purchase, rental, financing, or occupation of a dwelling or for applying for or participating in a service, organization, or facility relating to the business of selling or renting dwellings, or

    (b) Because a person has made a complaint, testified, assisted, or participated in any manner in a proceeding under Article 49B, Annotated Code of Maryland.

    B. Unlawful Refusal to Sell or Rent or to Negotiate.

    (1) It shall be unlawful for a person to refuse:

    (a) To sell or rent a dwelling to a person who has made a bona fide offer because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

    (b) To negotiate with a person for the sale or rental of a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

    (2) Prohibited actions under this section include, but are not limited to:

    (a) Imposing different sales prices or rental charges for the sale or rental of a dwelling upon a person because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (b) Using different qualification criteria, applications, sale or rental standards or procedures such as income standards, application requirements, application fees, credit analysis, approval procedures, or other requirements, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

    (c) Evicting tenants because of their race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

    C. Discrimination in Terms, Conditions, and Privileges and in Services and Facilities.

    (1) It shall be unlawful, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation to:

    (a) Impose different terms, conditions, or privileges relating to the sale or rental of a dwelling; or

    (b) Deny or limit services or facilities in connection with the sale or rental of a dwelling.

    (2) Prohibited actions under this section include, but are not limited to:

    (a) Using different provisions in leases or contracts of sale, such as those relating to rental charges, security deposits, and the terms of a lease, and those relating to down payment and closing requirements, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (b) Failing or delaying maintenance or repairs of sale or rental dwellings because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (c) Failing to process an offer for the sale or rental of a dwelling or to communicate an offer accurately because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (d) Limiting the use of privileges, services, or facilities associated with a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of an owner or tenant; or

    (e) Denying or limiting services or facilities in connection with the sale or rental of a dwelling because an individual failed or refused to provide sexual favors.

    D. Other Prohibited Sale and Rental Conduct. It shall be unlawful, because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation to restrict or attempt to restrict the choice of a person by word or conduct in connection with seeking, negotiating for, buying, or renting a dwelling so as to:

    (1) Perpetuate, or tend to perpetuate, segregated housing patterns; or

    (2) Discourage or obstruct choices in a community, neighborhood, or development.

    E. Prohibited Practices Under § D of This Regulation. Section D of this regulation generally refers to unlawful steering practices that include, but are not limited to:

    (1) Discouraging a person from inspecting, purchasing, or renting a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (2) Discouraging a person because of the race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation of individuals in a community, neighborhood, or development;

    (3) Discouraging the purchase or rental of a dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation by exaggerating drawbacks or failing to inform a person of desirable features of a dwelling, community, neighborhood, or development;

    (4) Communicating to a prospective purchaser that the person would not be comfortable or compatible with existing residents of a community, neighborhood, or development because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

    (5) Assigning a person to a particular section of a community, neighborhood, or development or to a particular floor of a building because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

    F. Unlawful Conduct Related to Provision of Housing, Services, or Facilities. Prohibited sales and rental practices under this section of the regulation include, but are not limited to:

    (1) Discharging or taking other adverse action against an employee, broker, or agent because the individual refused to participate in a discriminatory housing practice;

    (2) Employing codes or other devices to segregate or reject applicants, purchasers, or renters because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (3) Refusing to take or to show listings of dwellings in certain areas because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (4) Refusing to deal with certain brokers or agents because the brokers or agents or one or more of their clients are of a particular race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation;

    (5) Denying or delaying the processing of an application made by a purchaser or renter or refusing to approve an individual for occupancy in a cooperative or condominium dwelling because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation; or

    (6) Refusing to provide municipal service, or property or hazard insurance for a dwelling, or providing it differently because of race, color, religion, sex, disability, familial status, marital status, national origin, or sexual orientation.

  3. Cathy Brennan says:

    I’m posting these for you as FYI – I also don’t understand the analysis used to get shelters under Housing, and asked this question on a FB thread well over a month ago. Clear as mud.

  4. Cathy Brennan says:

    Dwelling unit is the only definition in COMAR that references shelter, but the Fair Housing regs don’t mention dwelling unit again (from what I can tell looking quickly). You can look up COMAR regs here: http://www.dsd.state.md.us/comar/

  5. Article 49B is no longer in force. The entirety of Article 49B was repealed.

    The currently effective laws are contained in Title 20, “Human Relations” of the currently effective Maryland Code. To wit:

    *****
    Section 20-701

    (d) Dwelling.- “Dwelling” means:

    (1) any building, structure, or portion of a building or structure that is occupied, or designed or intended for occupancy, as a residence by one or more families; and

    (2) any vacant land that is offered for sale or lease for the construction or location on the land of any building, structure, or portion of a building or structure described in item (1) of this subsection.
    *****

    and:

    *****
    Section 20-301

    In this subtitle, “place of public accommodation” means:

    (1) an inn, hotel, motel, or other establishment that provides lodging to transient guests;

    (2) a restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food or alcoholic beverages for consumption on or off the premises, including a facility located on the premises of a retail establishment or gasoline station;

    (3) a motion picture house, theater, concert hall, sports arena, stadium, or other place of exhibition or entertainment;

    (4) a retail establishment that:

    (i) is operated by a public or private entity; and

    (ii) offers goods, services, entertainment, recreation, or transportation; and

    (5) an establishment:

    (i) 1. that is physically located within the premises of any other establishment covered by this subtitle; or

    2. within the premises of which any other establishment covered by this subtitle is physically located; and

    (ii) that holds itself out as serving patrons of the covered establishment.

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