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Robards v. Cotton Mill Assoc.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME  157
Docket:	Ken-97-617
Argued:	April 7, 1998
Decided:	June 18, 1998


Majority:WATHEN, C.J., and ROBERTS, RUDMAN, and LIPEZ, JJ.

Dissenting:	CLIFFORD, DANA, and SAUFLEY, JJ.



	[¶1]  Cotton Mill Associates appeals from the judgment entered in the
Superior Court (Kennebec County, Atwood, J.) in favor of Gordon Robards. 
On appeal Cotton Mill contends that the court erred by finding that a clause
in its housing application violated 5 M.R.S.A. § 4582 (Pamph. 1997) and
granting Robards a summary judgment.  Cotton Mill also asserts that the
court's award of attorney fees and civil penal damages to Robards was
erroneous.  We affirm the judgment.  
	[¶2]  In April 1991 Robards filed a complaint with the Maine Human
Rights Commission alleging that Cotton Mill, a federally subsidized housing
project, engaged in illegal and impermissible inquiries regarding his
handicap status.  His allegations{1} arose from Cotton Mill's use of a health
status form in its application procedure that contained the following
(statement of your doctor should be used here).  Physician
should state here a brief description of your medical condition,
disability and/or handicap and whether you are able to care for 
yourself if living alone and/or able to care for [an] apartment.  
	[¶3]  On December 14, 1992, the Commission determined that
reasonable grounds existed to believe that this inquiry violated 5 M.R.S.A.
§ 4582.  The Commission attempted to resolve the dispute between the
parties but ultimately failed to enter into a conciliation agreement with
Cotton Mill within 90 days after its finding.  On February 5, 1993, Robards
filed a complaint against Cotton Mill in the Superior Court seeking damages
for emotional distress and lost income, civil penal damages, attorney fees,
and costs.  In May 1993 Cotton Mill filed a motion for a summary judgment,
claiming that 5 M.R.S.A. § 4582 was preempted by a federal regulation, 24
C.F.R. § 100.202(c) (1997),{2} promulgated under the Fair Housing
Amendments Act of 1988, 42 U.S.C. §§ 3601-3631 (1994).  In response,
Robards filed a motion for a summary judgment.  The court (Crowley, J.)
granted Robards's motion and ordered a trial on damages.  
	[¶4]  After the hearing, the court (Alexander, J.) ordered that Cotton
Mill cease and desist from using any application that illegally inquired into
the nature and severity of a person's disability and awarded Robards a civil
penalty of $1,000 and $5,000 in attorney fees.  Cotton Mill appealed the
court's order granting Robards a summary judgment and its order awarding
damages.  In Robards v. Cotton Mill Assocs., 677 A.2d 540 (Me. 1996)
(Robards I), we vacated the Superior Court's decision, holding that 24 C.F.R.
§ 100.202(c) preempted 5 M.R.S.A. § 4582, and remanded the matter to
the trial court for a determination whether the inquiry in the health status
form exceeded the scope permitted by federal law.  Id. at 544.  
	[¶5]  On remand, both Cotton Mill and Robards filed a second motion
for a summary judgment.  The court (Atwood, J.) granted a summary
judgment in Robards's favor, reinstated the original damage award, and
ordered Cotton Mill to pay an additional $5,371.69 in attorney fees.  This
appeal followed.  
	[¶6]  Although Cotton Mill contends that Robards failed to prove that
its application procedure violated 5 M.R.S.A. § 4582, our inquiry is limited
to a determination whether the health status form required by that
procedure exceeds the scope permitted by section 100.202(c).  The
determination that the use of the form in the application procedure violated
section 4582 was not challenged by Cotton Mill in its first appeal.  The issue
therefore is not preserved for appellate review.  See  McCarthy v. U.S.I.
Corp., 678 A.2d 48, 51 n.3 (Me. 1996).  
	[¶7]  The provision in question consists of two separate inquiries.  The
first requires a physician to describe the applicant's medical condition; the
second inquires into the applicant's ability to care for himself and to care for
an apartment.  Neither party challenges the court's determination that the
second inquiry is permissible pursuant to section 100.202(c)(1).  Rather,
the parties disagree whether the first inquiry is permissible pursuant to
section 100.202(c)(2), which allows a landlord to make a limited inquiry to
determine whether an applicant is qualified for housing available only to
persons with handicaps.  The purpose of that section is to facilitate a
landlord's determination whether an applicant is eligible for housing.  A
permissible inquiry is therefore one limited to discerning whether an
applicant has a handicap.  Understandably, a landlord is allowed to request
that a physician verify an applicant's handicap.  A landlord is not, however,
permitted to require the applicant to provide the landlord with a
description of his handicap.  By requesting a description of Robards's
disability, Cotton Mill exceeded the scope of the permissible inquiry allowed
by section 100.202(c)(2).  
	[¶8]  Cotton Mill next contends that the court erred by awarding
Robards attorney fees and civil penal damages because the Commission
failed to engage in objectively reasonable efforts to reach a conciliation
agreement.  Assuming arguendo that this standard was applicable, the
Commission engaged in objectively reasonable efforts to conciliate this
matter.  The compliance officer sent several letters and made several
telephone calls to the attorneys representing both parties in an attempt to
resolve the matter, but did not circulate a draft proposal because the statute
of limitation for Robards to commence a civil action was about to expire.  In
light of the impending deadline and the refusal of both parties to settle the
dispute, the compliance officer's actions were reasonable.  See Baumgardner
v. Secretary, U.S. Dep't of Housing & Urban Dev., 960 F.2d 572, 579 (6th
Cir. 1992).  
	[¶9]  Cotton Mill also asserts that Robards failed to comply with 5
M.R.S.A. § 4622 (1989){3} by commencing this action before waiting 90 days
after the Commission's finding that there existed reasonable grounds to
believe that unlawful discrimination had occurred.  Cotton Mill contends
that since the Commission made its findings on December 14, 1992,
Robards should have waited 90 days after that date, March 14, 1993, before
commencing this litigation.  Contrary to its assertions, section 4622 does
not require a plaintiff to wait 90 days after the Commission's finding of
reasonable grounds before commencing a civil action.  In construing a
statute, we examine the plain meaning of the statutory language, seeking to
give effect to the legislative intent, Daniels v. Tew Mac Aero Servs., Inc., 675
A.2d 984, 987 (Me. 1996), and avoiding absurd, illogical, or inconsistent
results, Estate of Whittier, 681 A.2d 1, 2 (Me. 1996).  The plain language of
section 4622 provides that a plaintiff may bring an action as long as the
Commission failed, within 90 days after its finding that reasonable grounds
existed to believe that unlawful discrimination occurred, to enter into a
conciliation agreement.  The statutory language does not prohibit a plaintiff
from commencing an action before the 90-day period has expired if the
Commission, as it did in this case, determines within the 90-day period that
conciliation efforts have failed.  
	[¶10]  Cotton Mill's assertion that Robards was not a "prevailing party"
within the meaning of 5 M.R.S.A. § 4614 (1989) is also unavailing.  The
Maine Human Rights Act provides that a court in its discretion may allow
the prevailing party reasonable attorney fees.  Id.  A determination of
prevailing party status is a question of fact, subject to a review for clear
error.  Hicks v. City of Westbrook, 649 A.2d 328, 329 (Me. 1994).  Contrary
to Cotton Mill's contentions, the court's award of civil penal damages and a
cease and desist order qualified Robards as a "prevailing party" because
Robards received "actual relief on the merits of his claim [that] materially
alter[ed] the legal relationship between the parties by modifying [Cotton
Mill's] behavior in a way that directly benefit[ed] [him]."  Farrar v. Hobby,
506 U.S. 103, 111-12 (1992).  
	[¶11]  Finally, the court properly considered the factors enunciated in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974), abrogated on other grounds, Blanchard v. Bergerson, 489 U.S. 87
(1989), in its determination of a reasonable award of attorney fees. 
Moreover, once the court found that unlawful discrimination had occurred,
it could validly impose a civil penalty pursuant to 5 M.R.S.A. § 4613(2)(B)(7)
(1989 & Pamph. 1997).  Maine Human Rights Comm'n v. City of Auburn,
425 A.2d 990, 995 (Me. 1981).  
	The entry is:  
				Judgment affirmed.  

DANA, J., with whom CLIFFORD and SAUFLEY, JJ., join, dissenting. [¶12] I respectfully dissent. In my opinion, the plain language of 24 C.F.R. § 100.202(c)(2) does not support the Court's conclusion that the regulation allows a landlord to inquire whether an applicant has a handicap, but does not permit a landlord to ask for a brief description of the handicap. Because I believe the request for information by Cotton Mill does not run afoul of the type of inquiry expressly permitted pursuant to 24 C.F.R. § 100.202(c)(2), I would vacate the judgment. [¶13] Section 100.202(c)(2) permits a landlord to make otherwise unlawful inquiries regarding a person's handicap "to determine whether an applicant is qualified for a dwelling available only to persons with handicaps . . . ." The regulation clearly contemplates that a landlord who provides federally subsidized housing for handicapped persons will need to make a determination whether an applicant is in fact handicapped as defined by the Federal Fair Housing Act. The Act provides in pertinent part:
"Handicap" means, with respect to a person--
	(1)  a physical or mental impairment which
substantially limits one or more of such person's
major life activities,
	(2)  a record of having such impairment, or
	(3)  being regarded as having such an impairment . . . .
42 U.S.C. § 3602(h) (1994).  The Court's restrictive reading of section
100.202(c)(2) effectively allows the determination of whether an applicant
is qualified for housing to be made by a physician of the applicant's choosing,
rather than by the owner of the housing, as anticipated by the regulation.
	[¶14]  The appropriate inquiry, as contemplated by the regulations and
as requested by Cotton Mill, does no more than require an individual
seeking to take advantage of federally subsidized housing to make more than
a conclusory showing that he qualifies for such assistance.  Cotton Mill did
not require an applicant to provide an extended medical history or copies of
medical records to substantiate a request for housing.  It merely asked for a
"brief description" of the applicant's handicap to enable it to make the
necessary determination of whether the applicant's impairment
"substantially limits one or more of such person's life activities."  Because I
believe a fair reading of section 100.202(c)(2) makes such a limited inquiry
permissible, and because such an inquiry does not unreasonably intrude on
an applicant's right to privacy, I would vacate the  judgment of the Superior

Attorney for plaintiff: Eric M. Mehnert, Esq. (orally) Jones, Bernstein & Mehnert, LLP 66 Winthrop St. Augusta, Maine 04330 Attorney for defendant: David J. Van Baars, Esq. (orally) Shankman & Associates 101 Pleasant St. Brunswick, Maine 040ll
FOOTNOTES******************************** {1}. This is the second time this matter has been before us on appeal. For a more comprehensive recitation of Robards's interactions with Cotton Mill, see Robards v. Cotton Mill Assocs., 677 A.2d 540, 542 (Me. 1996) (Robards I). {2}. 24 C.F.R. §100.202(c) (1997) provides: (c) It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling, a person intending to reside in that dwelling after it is sold, rented or made available, or any person associated with that person, has a handicap or to make inquiry as to the nature or severity of a handicap of such a person. However, this paragraph does not prohibit the following inquiries, provided these inquiries are made of all applicants, whether or not they have handicaps: (1) Inquiry into an applicant's ability to meet the requirements of ownership or tenancy; (2) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with handicaps or to persons with a particular type of handicap; .... {3}. 5 M.R.S.A. § 4622 (1989), as it existed in 1991, provided: No attorneys' fees under section 4614 and no civil penal damages under section 4613 may be awarded to a plaintiff in a civil action under this Act unless the plaintiff alleges and establishes that, prior to the filing of the civil action, the plaintiff first filed a complaint with the commission and the commission either: .... B. Failed, within 90 days after finding reasonable grounds to believe that unlawful discrimination occurred, to enter into a conciliation agreement to which the plaintiff was a party. Section 4622 has since been amended to allow a plaintiff, who has received a right-to-sue letter from the Commission, to pursue attorney fees and civil penal damages in a civil action. 5 M.R.S.A. § 4622 (Pamph. 1997).