                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


ANTHONY HUNTER, on his behalf
and as parent of his minor
daughter, A.H.,

            Plaintiffs,

      v.

THE DISTRICT OF COLUMBIA,
a municipal corporation,

THE COMMUNITY PARTNERSHIP FOR                    Civil Action No. 12-1960 (GK)
THE PREVENION OF HOMELESSNESS,:

COALITION FOR THE HOMELESS,

and

COMMUNITY OF HOPE,

            Defendants.


                                 MEMORANDUM OPINION

      Plaintiff Anthony Hunter                 ("Hunter")       and his minor daughter

A.H. 1 (collectively/        "the Hunters") filed this action against the

District of Columbia          ("the District//         or "D.C.")         1   the Community

Partnership         for    the       Prevention         of        Homelessness           ("the

Partnership")   1    the Coalition for the Homeless                 ("the Coalition")        1




and Community of Hope            ( "COW1   )   (collectively 1      "Defendants//) . The

Hunters    allege     that    Defendants          violated       various       federal    and

local anti-discrimination statutes and were negligent.

1
  Pursuant to Local Civil Rule 5.4(f) (2)  Hunter S daughter will
                                                            1
                                                                      1



be referred to by her initials in order to protect her privacy.
          This matter is presently before the Court on the District's

Motion to Dismiss Plaintiffs'                             First Amended Complaint               [Dkt. No.

65]       and    COR's     Motion          to        Dismiss        Plaintiffs'         First     Amended

Complaint         [Dkt.        No.    66].       Upon           consideration      of     the    Motions,

Oppositions            [Dkt.    Nos.       73    and       74],     Replies       [Dkt.   Nos.     77    and

80],      the United States of America's Statement of Interest                                          [Dkt.

No.       79],    the     Responses             to    the        United   States'         Statement        of

Interest         [Dkt.    Nos.       93 and 94],                the entire record herein,                and

for the reasons stated below,                             the District's Motion is granted

in      part     and     denied       in     part,          and    Defendant       COR's        Motion     is

granted in part and denied in part.

I .       BACKGROUND

          A.     Factual Background2

          The    District,           through         its        Department    of        Human    Services

    ( "DHS") ,   provides social             services             for indi victuals and families

in the city who are homeless or at risk of homelessness.                                            First

Amended Complaint               ( "Compl. ")          ~    8.    In doing so,       it entered into

contracts with various service providers. Id.                                 ~    9.



2
   For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
 (D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the First Amended Complaint [Dkt. No. 59].
                                                          -2-
       One such contractor,              the Partnership, has been retained to

manage and direct emergency shelter services.                        Id.     ~~   9-10.     As

part of its duties, the Partnership runs the District-owned D.C.

General Shelter.        Id.    ~   10.    The Partnership contracted with the

Coalition      to    operate       the     Virginia     Williams    Family         Resource

Center ("the Center"), which is the central intake facility for

all   families       seeking       placements      in   shelters.     Id.        ~ 12.      The

Partnership has also contracted with COH to manage the day-to-

day operations at the District-owned Girard Street Apartments.

Id.   ~~ 8,   11.

      At the time of the events relevant to this case,                            Plaintiff

Hunter lived with his six-year old daughter, A.H.                          Id.    ~~   7,   36.

She was born with and continues to suffer from spina bifida and

cri-du-chat     syndrorne. 3       Id.    ~~ 7,   35.   As   a   result,     she uses         a

wheelchair     and    cannot       engage    in    "self -care,    such as         bathing,

dressing      and    eating."       Id.    Her    medical    conditions          leave      her

3
  Cri-du-chat syndrome is a chromosomal condition "characterized
by intellectual disability and delayed development, small head
size            low birth weight, and weak muscle tone          in
infancy."    Cri-du-chat   syndrome,    Genetics  Horne Reference,
http://ghr.nlrn.nih.gov/condition/cri-du-chat-syndrorne      (last
visited June 30, 2014). Spina bifida is a "condition in which
the bones of the spinal column do not close completely around
the developing nerves of the spinal cord." Spina bifida,
Genetics Horne Reference, http://ghr.nlrn.nih.gov/condition/spina-
bifida (last visited June 30, 2014). It can result in "a loss of
feeling below the level of the opening, weakness or paralysis of
the feet or legs, and problems with bladder and bowel control."
Id.
                                            -3-
particularly              susceptible                            to     infections,              and       doctors           have

recommended she live in an environment that minimizes exposure

to infections and other communicable diseases. Id.

           On     December               7   I         2011,            the            Hunters        faced           immediate

homelessness and applied for placement in a homeless shelter in

the        District.           Id.               ~ 37.            While           at     the     Center           discussing

placement,           Hunter              told               the        staff           that     A.H.        had       mobility

impairments              and        that                the            Hunters           needed        a        non-communal

environment              with           a            private            bathroom              that     was        wheelchair

accessible.          Id.       ~~       3 7,          3 9.       The Center staff failed to include

the        request       for        a            non-communal                 environment             with        a    private

bathroom           and     included                     only           the        request        for        a     wheelchair

accessible           unit           when               writing               up        the     Hunters'           reasonable

accommodation request. Id.                                   ~   39.

           The    Hunters           were              placed            in     uBuilding             12"    of        the    D.C.

General          Shelter.       Id.              ~    41.        Although the room was private,                               the

ramp        into     the        building                         was     too           steep     to        be     wheelchair

accessible.          Id.       ~~    43,             46.         The Hunters had to share a bathroom

with several             other families                           and the              staff refused to                let    the

Hunters eat in a separate room. Id.                                               ~~    47-48, 50. While residing

in     this       shelter,           A.H.               developed                 a     urinary        tract          infection

resulting in the need for treatment at Children's Hospital.                                                                   Id.

~    54.    Asserting that                       the placement did not meet A. H.'s needs,
                                                                      -4-
Hunter       repeatedly          asked            that    he       and     A.H.      be    relocated       to    an

accessible unit. Id.                   ~~    51, 53.

          On or about December 29,                         2011,          the Hunters were moved to

the     Girard Street Apartments,                          where          they were given a            private

apartment.          Id.    ~~    56,        66.    The Hunters were told that                         the only

available unit at the Girard Street Apartments was on the third

floor and that              they would not                  receive            an accessible unit.              Id.

~~ 69,       71.    There was no elevator,                          so Hunter had to carry A.H.

and her wheelchair up and down two flights of stairs to arrive

at    or leave        the       apartment.           Id.       ~    74.    Finally,        the hallways          in

the unit were too narrow to accommodate A.B.'s wheelchair.                                                      Id.

~ 75.

        There was at             least one accessible first                               floor unit at the

Girard Street Apartments that was occupied by a                                             family that did

not need the accessible features.                                   Id.    ~   78.   Hunter was told by

the program director that she could not require that family to

move and that the Hunters would need to stay in the third floor

unit.      Id.     On February 10,                  2012,          after the         intervention of            the

Hunters'         attorney,       the Hunters were moved to a first floor unit.

Id.   ~    86.     Because the wheelchair lift was broken,                                      Hunter still

had     to    lift        the    wheelchair              up        three       steps       to   get   to    this

apartment.         Id.     ~~    73,        86.    As a       result of the need to lift and



                                                         -5-
carry A.B.'s wheelchair, Hunter experienced back and chest pain.

Id.     ~    77.

            On March           12,     2012,     the       Hunters       moved out           of    the   Girard

Street               Apartments       and      into    a    supportive           housing      program.       Id.

~     88.

            B.         Procedural History

            On        December       6,     2012,     the    Hunters         filed       their       Complaint

    [Dkt.    No.        1],    and on April 29,                  2013,   they filed a Motion for

Leave to File an Amended Complaint                                   [Dkt.       No.    54]        On May 17,

2013, the Motion was granted via Minute Order.

            On June           3,   2 013,      the District          filed a           Motion to Dismiss

    ("Mot.")           [Dkt. No.       65]. On June 7,              2013,    COH filed a Motion to

Dismiss ("COH Mot.")                       [Dkt. No. 66]. On July 3, 2013, the Hunters

filed        their Opposition to                      the District's Motion                   ( "Opp' n")    and

COR's Motion ("COH Opp'n")                          [Dkt. Nos. 73, 74]. On July 24, 2013,

COH filed its Reply                       ( "COH Reply")           [Dkt. No.       77] ,      and an Answer

with regard to the two negligence claims                                     [Dkt. No.            78]. On July

26, 2013, the District filed its Reply ("Reply")                                         [Dkt. No. 81].

            On July 2 6,             2 013,    the U.S.          Department of Justice                   ( "DoJ")

filed            a     Statement          of   Interest          related     to        and    opposing       the
                                                                             4
District's Motion to Dismiss [Dkt. No. 79]                                        On October 29, 2013,


4
  Pursuant to 28 U.S.C. § 517, "[t]he Solicitor General, or any
officer of the Department of Justice, may be sent by the
                                                           -6-
the District and COH both filed Responses to the Statement of

Interest [Dkt. Nos. 93, 94].

II.     STANDARD OF REVIEW

        Under Rule           12 (b) (6),     a    plaintiff need only plead                   "enough

facts to state a claim to relief that is plausible on its face"

and     to       "nudge[]      [his     or       her]    claims      across       the   line     from

conceivable to plausible." Bell Atl. Corp. v.                                Twombly,        550 U.S.

544, 570         (2007).     "[A]    complaint          [does not]       suffice if it tenders

naked        assertions         devoid           of     further        factual     enhancement."

Ashcroft v. Iqbal, 556 U.S. 662, 678                            (2009)    (internal quotations

omitted)          (citing      Twombly,           550    u.s.     at      557).    Instead,         the

complaint must plead facts that are more than "merely consistent

with"        a   defendant's          liability;         "the     pleaded     factual         content

[must]       allow[]       the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged." Id. at 678

(citing Twombly, 550 U.S. at 556).

        " [O] nee      a    claim     has    been        stated     adequately,         it    may    be

supported         by       showing     any       set    of   facts       consistent      with       the

allegations in the complaint." Twombly,                             550 U.S.       at 563.      Under

the standard set forth in Twombly, a "court deciding a motion to



Attorney General to              any State or district in the United States
to attend to the                interests of the United States in a suit
pending in a court               of the United States, or in a court of a
State, or to attend             to any other interest of the United States."
                                           -7-
dismiss must                       assume all the allegations in the complaint

are true        (even if doubtful in fact)                                [and]       must give the

plaintiff the benefit of all reasonable inferences derived from

the     facts       alleged."           Aktieselskabet           AF    21.,     525     F.3d   at    17

    (internal quotations and citations omitted);                              see also Tooley v.

Napolitano,             586 F.3d 1006,           1007    (D.C.    Cir.    2009)       (declining to

reject        or        address         the      government's          argument         that      Iqbal

invalidated Aktieselskabet) .

III. ANALYSIS

        The     District           and    COH     raise     several           similar    arguments.

Consequently,            the Court will address together the issues raised

by both parties to each Count of the Complaint. 5

        A.      Counts I and III: Plaintiffs Have Sufficiently Alleged
                Claims   Under  Title  II   of   the  Americans   with
                Disabilities Act and Section 504 of the Rehabilitation
                Act

        Count       I    of   the Amended Complaint                   alleges    that Defendants

violated        Title         II    of     the     Americans          with      Disabilities        Act

("ADA"),       42       U.S.C.      §    12131    et     seq,     which       provides     that     "no

qualified individual with a disability shall, by reason of such

5
  COH originally argued that Plaintiffs' claims against it were
barred by the doctrine of release. COR Mot. at 19-21. Plaintiffs
then filed an Addendum to their Settlement Agreement with the
Partnership, clarifying that the document did not apply to or
settle any claims with any other organizations. Dkt. No. 69-2.
The Court approved this addendum in a Minute Order on June 17,
2013, and COH correspondingly withdrew this argument. COH Reply
at 2 n.l.
                                                   -8-
disability,           be excluded from participation in or be denied the

benefits of the services,                       programs,        or activities of a public

entity,      or be subjected to discrimination by any such entity."

42    u.s.c.    §   12132.

        Count III of the Amended Complaint alleges that Defendants

violated Section 504 of the Rehabilitation Act,                                 29 U.S.C.    §   701

et seq. Similar to Title II,                       Section 504 prohibits programs and

activities          receiving           federal    funds        from discriminating on the

basis of disability. 29 U.S.C.                      §   794 (a)     ("No otherwise qualified

individual with a disability                                    shall,     solely by reason of

her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance .

       . "); see also Young v. D.C. Hous. Auth., No. 13-652, 2014 WL

948317, at *5 (D.D.C. Mar. 12, 2014).

       The focus            of    the Rehabilitation Act                 is narrower than the

ADA    because         it        only    applies        to      programs    receiving      federal

financial assistance. Powell v. Nat'l Bd. of Med. Examiners/ 364

F.3d 79,        85,    opinion corrected 1                511     F.3d 238      (2d Cir.    2004).

Because        Plaintiffs          allege       that      the    District      receives    federal

funds 1      Compl.      ~~      8-9,     the     Rehabilitation         Act    claims     and   the

Title II claims against the District may be considered together.

Mot.    at     5-6,    6 n.4;           Opp 1 n at 4;        see also Am.       Council of the
                                                    -9-
Blind   v.    Paulson,           525     F.3d   1256,     1260    n.2     (D.C.   Cir.        2008)

(noting      that        the     statutory        provisions        are    so     similar        in

substance     that        "cases       interpreting        either    are    applicable          and

interchangeable"            (citation       omitted));          Harrison    v.    Rubin,        174

F.3d 249,     253        (D.C.    Cir.    1999)     ("Claims and defenses under the

[ADA and the Rehabilitation Act] are virtually identical.").

     COH argues that the ADA and the Rehabilitation Act do not

apply to it,        for various reasons.                 The Court will first address

the substantive arguments raised by the District and then will

resolve applicability of these statutes to COH.

             1.      Plaintiffs Are Not Required to Prove Intentional
                     Discrimination to Plead a Claim for Declarative
                     Relief

     To establish a prima facie case under either Title II or

the Rehabilitation Act, a plaintiff must allege that                               (1)       she is

a qualified individual with a disability;                           (2)   the defendant is

subject to the Acts; and                  (3)   she was denied the opportunity to

participate         in     or     benefit         from    the     defendant's       services,

programs,    or activities,              or was otherwise discriminated against

by the defendant because of her disability.                             42 U.S.C.        §   12131;

29 U.S.C.     §   794 (a);        see also McElwee v.             Cnty.     of Orange,          700




                                                -10-
F.3d 635,       640     (2d Cir. 2012)            (citing Henrietta D. v. Bloomberg,

331 F.3d 261, 272 (2d Cir. 2003)). 6

     Although a plaintiff "need not plead a prima facie case of

discrimination"              in     order    to    survive       a     motion      to   dismiss,

Swierkiewicz           v.     Sorema      N.A.,    534    U.S.       506,    515    (2002),   the

District        does        not    dispute    that       Plaintiffs         have    sufficiently

alleged     a     prima           facie   case     under     the      Acts. 7      Instead,   the


6
  Title II defines "discriminate" to include a failure to make
"reasonable modifications." See 42 U.S.C. §§ 12131(2), 12132;
see also 28 C.F.R. § 35.130 (b) (7) ("A public entity shall make
reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination on
the   basis   of  disability,   unless  the  public   entity  can
demonstrate that making the modifications would fundamentally
alter the nature of the service, program, or activity."); see
also McElwee, 700 F.3d at 640-41 (2d Cir. 2012) (noting that
"[u]nder both statutes, a defendant discriminates when it fails
to make a reasonable accommodation that would permit a qualified
individual to have access to and take a meaningful part in
public   services")   (internal  quotation  marks   and  citation
omitted)

The parties use the term "reasonable accommodations" to refer to
these   requests.  This   Court    will   also  use   "reasonable
accommodations" to encompass "reasonable modifications" under
Title II. See McGary v. City of Portland, 386 F.3d 1259, 1266
n.3 (9th Cir. 2004) (citation omitted) ("Although Title II of
the ADA uses the term 'reasonable modification,' rather than
'reasonable   accommodation,'   these   terms  create   identical
standards.").
7
  In its Response to the United States' Statement of Interest,
the District argues for the first time that Plaintiffs failed to
sufficiently plead that the District discriminated against A.H.
"because of" her disability. Def. Dist. of Columbia's Resp. to
Statement   of  Interest  of   the  United  States   of  America
("Response") at 9-10. As the District failed to raise this
                              -11-
District's primary argument                  is    that      Plaintiffs have         failed to

allege facts to support a claim that the District acted with the

required intent. Mot. at 5-8.

     As     the    District         admits        in   its      Response,      the   issue     of

intentional        discrimination          is     only       relevant    to    the   issue     of

compensatory damages.           Response at 9 n. 5;               Liese v.      Indian River

Cnty. Hosp. Dist., 701 F.3d 334, 344                         (11th Cir. 2012)        (observing

that failure to provide reasonable accommodation "by itself will

not sustain a claim for compensatory damages;                            the     [plaintiffs]

must also show by a preponderance that the [defendant] 's failure

to   provide       appropriate         [reasonable            accommodations]         was     the

result     of     intentional        discrimination");             Meagley      v.    City     of

Little     Rock,    639    F.3d     384,     388       (8th Cir.     2011)      (noting      that

every Court        of Appeals        to    address        the    issue   has    held that       a

plaintiff may not recover compensatory damages under the ADA or

the Rehabilitation Act without proof of discriminatory intent) .

     Therefore,       Plaintiffs do not have to allege discriminatory

intent in order to be entitled to the declaratory relief they

request.     Compl.       at   38    (praying          for    declaratory       relief);     Am.


argument in either its Motion or its Reply, it has waived it.
See Alston v. Dist. of Columbia, 561 F. Supp. 2d 29, 37 (D.D.C.
2008); cf. Williams v. Romarm, SA, No. 13-7022, 2014 WL 2933222,
at *3 (D.C. Cir. July 1, 2014) ("Questions not presented and
argued by the parties in a sequence affording appropriate
consideration are forfeited, and we accordingly decline to rule
on the issue since it was not properly raised.").
                              -12-
Council,              525         F. 3d at      1260     (noting that              "section 504    does not

require proof of discriminatory intent                                    11
                                                                               )    (discussing Alexander

v. Choate, 469 U.S.                       287,     295        (1985)); Powers v. MJB Acquisition

Corp.,               184         F.3d   1147,     1152        (lOth    Cir.        1999)     ("[I]ntentional

discrimination is not an element of the plaintiff 1 s prima facie

case.   11
             )   •     Consequently,              Plaintiffs           have         sufficiently        alleged

violations under both Title II of the ADA and the Rehabilitation

Act for declarative relief.

                       2.          Plaintiffs Have Sufficiently Alleged Deliberate
                                   Indifference By the District of Columbia

        The            District           argues         that         Plaintiffs           have   failed     to

sufficiently allege that it acted with deliberate indifference,

and,     hence,                  that   Plaintiffs,           request     for       compensatory damages

under the ADA and the Rehabilitation Act must be dismissed. 8


8
  In a footnote, the District argues that it does not "concede                                                11


that "deliberate indifference     is the appropriate standard and
                                                         11


suggests     that    Plaintiffs      must   plead     "intentional
discrimination.   Mot. at 5 n. 3. Our Court of Appeals has not
                                   11


addressed the appropriate standard, but almost all other Courts
of Appeal to reach the issue have concluded that the "deliberate
indifference   standard is appropriate. See Liese, 701 F. 3d at
                            11


345-47 (noting that Eighth, Ninth, Tenth, and Second Circuit
have held that deliberate indifference standard applies, and
choosing to apply that standard); but see Delano-Pyle v.
Victoria Cnty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (finding
that   "[t]here   is   no   'deliberate   indifference,   standard
applicable to public entities for purposes of the ADA or the                                       11


Rehabilitation Act).    However,   since the District does not
provide support for its argument that a higher standard should
apply,   the  Court   will  assume without    deciding that    the
deliberate indifference standard applies.
                                -13-
         Deliberate indifference occurs when a "defendant knew that

harm to a federally protected right was substantially likely and

        . failed to act on that likelihood." Liese,                       701 F.3d at 344

    (quoting T.W.     ex rel.       Wilson v.     Sch.      Bd.     of    Seminole   Cnty.,

Fla., 610 F.3d 588, 604             (11th Cir. 2010)); Meagley,                 639 F.3d at

389 (noting that deliberate indifference can be "inferred from a

defendant's         deliberate      indifference       to    the     strong      likelihood

that pursuit of its questioned policies will likely result in a

violation      of    federally      protected     rights")          (quoting     Barber    ex

rel.     Barber v.     Colo.    Dep't of Revenue,            562 F.3d 1222,          1228-29

    (lOth Cir. 2009)). 9

         Plaintiffs present two different theories under which the

District       can     be      found    to      have        acted        with    deliberate

indifference.        First,    Plaintiffs allege the District acted with

deliberate          indifference       by    failing         to     enforce       its     own

obligations         under     the    ADA.    Second,        Plaintiffs          allege    the

District is responsible for the deliberate indifference of its

contractors. The Court will address each theory in turn.


9
  The District argues that Plaintiffs have to allege and prove
"actual knowledge" of a violation to establish deliberate
indifference. Mot. at 6-8; Reply at 2-5. However, the case it
cites for that proposition, Liese, clearly states that the
standard only requires an allegation that a defendant have
knowledge that harm to a right is "substantially likely," not
that it have actual knowledge of a violation. Liese, 701 F.3d at
344.
                              -14-
                            a.         Direct Liability

        First, Plaintiffs allege that the District was deliberately

indifferent            to        its     affirmative          obligation       under     the    ADA    to

ensure that its contractors not discriminate in the provision of

public services on the basis of disability. The District argues

that it does not have any affirmative obligation to monitor the

actions of the contractors.

        Regulations promulgated by the DoJ make clear that public

entities          cannot          escape        liability        by     contracting        away       the

provision          of        services           to       a    private       entity.       28    C.F.R.

§    35.130 (b) (1)         ("A public entity, in providing any aid, benefit,

or service, may not, directly or through contractual, licensing,

or     other      arrangements,               on       the    basis    of   disability                  II




discriminate against an individual with a disability);                                         id.    pt.

35 ,    App ' x   A,        at    51 7     (2 0 02 )    ("All    governmental          activities      of

public entities are covered,                            even if they are carried out by

contractors.           For example,             a State is obligated by title II to

ensure that            the services,               programs,      and activities of a State

park     inn operated under                    contract         by a    private    entity are          in

compliance with title II's requirements.")

        Unless the DoJ regulations are                            "arbitrary,      capricious,         or

manifestly         contrary              to   the       statute,"       they    should     be     given

"controlling weight." Chevron U.S.A.,                             Inc. v. Natural Res. Def.
                                                       -15-
Council,      Inc.,     467       U.S.        837,     844        (1984);     see    also      City    of

Arlington      v.     FCC,       133     S.     Ct.       1863,     1868      (2013)        ("Statutory

ambiguities will            be    resolved,           within the bounds              of      reasonable

interpretation,         not       by     the      courts          but   by    the      administering

agency."). The District does not argue that the regulations are

arbitrary or          capricious.             Indeed,       all    of   the    courts        that    have

addressed the regulations have concluded that they are entitled

to deference. See,            e.g.,      Kerr v. Heather Gardens Ass'n, No.                           09-

00409,      2010 WL 3791484, at *9                   (D. Colo. Sept. 22,               2010)    ("[T]he

regulations directing that a public entity is liable under Title

II    for    direct    conduct          as     well       as   indirect       conduct,         achieved

through contracting,              licensing,              or the like,        is not arbitrary,

capricious,         or manifestly contrary to                        the     statute.       Therefore,

the   regulations        are      entitled           to    controlling weight.")                (citing

Chevron, 467 U.S. at 844); Armstrong v. Schwarzenegger, 622 F.3d

1058, 1065-67 (9th Cir. 2010)                        (analyzing statute and legislative

history      and      holding          that      regulations            "reflect        the     fairest

reading of the statute").

       Instead,       the     District           argues        that     the    statute         and    the

regulations are         satisfied so long as the public entity merely

requires its contractors to comply with the statute. Mot. at 6-

7.    Its    only     citation          to     support         this     argument        is     language

contained      in an        illustration             in the        DoJ' s    Title     II     Technical
                                                  -16-
Assistance Manual stating that a State parks department would be

"obligated          to       ensure          by       contract"              that        a        privately       owned

restaurant         in a          State park            "operated in a                    manner that            enables

the parks department to meet its title II obligations." Id. at 6

(citing United States Dep' t                           of Justice,                Civil Rights Div.,                   The

Americans With Disabilities Act:                                  Title           II    Technical         Assistance

Manual      ("TAM")      §       II-1.3000, illus. 1).

          However,       other         illustrations               in        the       TAM    demonstrate             that

the       ADA     obligations            of       a     public             entity            go     beyond       simply

including         particular             language            in        its        contracts          with       private

contractors:           Illustration               4    states          that        a    public       entity       "must

ensure      that       its       contracts            are    carried              out    in       accordance          with

title      II."    TAM       §    II-1. 3000,          ill us.         4     (emphasis             added).       As    the

District        Court        for       the    District             of        Colorado             observed,       these

examples        "support           a     conclusion              that         a        public       entity       cannot

escape its obligations under Title II by delegating its duties

to    a    private       entity.         Indeed,            in    each        illustration                the    public

entity      remains          subject         to       Title       II       despite           its    delegation          of

authority         or    duty       to    another,            private              entity."          Kerr,       2010    WL

3791484, at *10.

          A number of courts have confirmed that public entities have

an    obligation         to       ensure      that          their private                    contractors         comply

with      title    II     of       the    ADA.         Henrietta              D.,       331        F.3d    at    284-86
                                                        -17-
(holding that general                     rules of contract apply and supervisory

liability exists under Rehabilitation Act);                                Hahn ex rel.           Barta

v.    Linn Cnty.,           Iowa,    191 F. Supp. 2d 1051,                 1054 n.2      (N.D.       Iowa

2002)      (noting that             its    earlier opinion had concluded that                          "a

contractual relationship between a public and a private entity

may     obligate        the     public       entity        to   ensure       that     the     private

entities with which it contracts comply with the public entity's

Title II obligations,,); James v.                       Peter Pan Transit Mgmt.,                  Inc.,

No . 9 7 - 7 4 7 ,   19 9 9 WL 7 3 51 7 3 ,       at * 9    ( E . D . N . C . Jan . 2 0 , 19 9 9 )    ( "A

public entity must not only ensure by contract that the private

entity       with     whom      it    contracts           complies       with    title      II,       but

further,       must ensure that the private entity complies with the

contract.,,);         Deck v.        City of Toledo,               56 F.    Supp.     2d 886,         895

(N.D.     Ohio 1999)          (noting that public entity can be held liable

for     failing       to     oversee        its    contractors,          even    if    it    did      not

affirmatively intend to discriminate) .

        In sum,       the District has not presented any support for its

argument that it has no obligation to ensure that its private

contractors           comply         with         its   ADA        and     Rehabilitation            Act

obligations, and all courts to address the issue have found that

they     have        such     an     obligation.           Thus,     the    Court      holds         that

Plaintiffs may proceed on a theory that the District is directly



                                                   -18-
liable for its deliberate indifference to its obligations under

the ADA and the Rehabilitation Act.

                      b.        Vicarious Liability

        Plaintiffs         also       argue             that     the    District           can     be     held

vicariously         liable        for     the            deliberate          indifference           of      its

contractors.        The District concedes that a public entity can be

held liable under the ADA for the deliberate indifference of its

employees or agents. Mot. at 6 n.5. It argues, however, that the

other Defendants               in this case are                   independent        contractors for

whose actions it cannot be held liable. Id.

        As   a     "general      rule,   11
                                                   an     entity       is    not   held      vicariously

liable       for     actions          taken             by      an     independent            contractor.

Interstate Fire            &   Cas.     Co.        v.    Wash.       Hosp.    Ctr.        Corp.,    No.     13-

7024,    2014 WL 3538081, at *6                         (D.C.    Cir. July 18,             2014)     (citing

W.M.    Schlosser Co. v. Md. Drywall Co.,                               673 A.2d 647,            651      (D.C.

1996)).      "In determining whether a person is an employee or an

independent         contractor,          District               of    Columbia       courts        consider

multiple         specified factors.           11
                                                        Id.     ( citations omit ted) .            However,

the     "decisive     test       is     whether           the        employer has          the     right     to

control and direct the servant in the performance of his work

and the manner in which the work is to be done.                                      11
                                                                                           Id.     (internal

quotations and citation omitted) .



                                                        -19-
        Plaintiffs allege that the District not only had the right,

but     the    obligation,         to    control         and     ensure     its        contractors'

compliance with the ADA and the Rehabilitation Act. Compl.                                         ~~   8,

10,   59,     96,   100.   Plaintiffs then point out that the District's

argument       that    its     contractors            are       independent       is      based         on

factual       disputes       that       are   not      and      cannot     be     appropriately

resolved in a motion to dismiss.                         Beegle v.        Rest.    Mgmt. ,         Inc. ,

679 A.2d 480,         485-86        (D.C.     1996)      (relying on information from

discovery to determine the nature of the employment relationship

between an individual and a company)                        i   Anderson v.        Wash.          Metro.

Area Transit Auth.,            No.      91-646,       1991 WL 197024,             at    *2    (D.D.C.

1991)       ("[W]hether       or     not      the     subcontractors             were        in     fact

independent         contractors         cannot      be      determined      on     a     motion         to

dismiss.") . 10 Although the District may again raise the issue of

its relationship to its contractors after discovery,                                     Plaintiffs

have sufficiently pleaded facts                     that,       in conjunction with "the

benefit of all reasonable inferences" Aktieselskabet AF 21., 525



10
  Moreover, even if the contractors are found to be independent,
the District may still be held vicariously liable under various
exceptions to the independent contractor rule. See Cooper v.
U.S. Gov't & Gen. Servs. Admin., 225 F. Supp. 2d 1, 5 (D.D.C.
2002)   (noting that the rule is       "riddled with exceptions
specifying certain conditions under which employers may be held
vicariously liable," including an exception for "non-delegable
duties         arising out of some relation toward the public")
(citing Restatement (Second) of Agency, § 219 (1958)).
                               -20-
F.3d at 17,         allow them to proceed on their theory of vicarious

liability at this time.

               3.        The District's Remaining Arguments Lack Merit

       The     Court        will      briefly       address      the     remaining       arguments

raised by the District.

       First,       the District argues that various allegations in the

Complaint       are       inconsistent.         Mot.        at   8-9.     The    Federal       Rules

expressly permit               parties    to plead          in the      alternative.         Fed.    R.

Civ.   P.    8 (d) (2)      ("A party may set out 2 or more statements of a

claim or       defense         alternatively or             hypothetically,         either      in    a

single count or defense or in separate ones.                                 If a      party makes

alternative statements,                the pleading is sufficient if any one of

them is sufficient."). Moreover,                       the Rules specifically permit a

party to "state as many separate claims or defenses as it has,

regardless       of    consistency."           Fed.    R.    Ci v.     P 8 (d) (3) .    Therefore,

any inconsistency in Plaintiffs'                       allegations         is not a      basis to

dismiss their claims.

       Second,        the      District       argues    that       various      "sub-counts"         of

the    Complaint         are    not    pleaded with          specificity.        Mot.    at    9-11.

This    argument,         too,       misunderstands          the     relevant       requirements.

Plaintiffs need merely include a                        "short and plain statement of

the    claim,"        Fed.      R.    Ci v.    P.     8 (a) (2) ,      sufficient       to    put     a

defendant on notice of the claims against it. Kingman Park Civic

                                                -21-
Ass'n v.         Williams,      348 F.3d 1033,            1040    (D.C.      Cir.       2003)    (" [T]he

complaint need only set forth a short and plain statement of the

claim giving            the     defendant         fair    notice      of     the    claim       and     the

grounds          upon     which       it     rests.")           (internal          quotations           and

citations omitted) .

       Plaintiffs            submitted a         detailed Complaint,               and each claim

specifically            incorporates         all     of     the       facts       alleged.           Compl.

~~ 97,      104,      111,    119,    130,    143,   149. Moreover,               rather than lack

specificity,            the     "sub-counts"         identify          the     various          theories

Plaintiffs intend to pursue as to each claim.                                     Id.    ~~   101,     108,

116,       122-124,      140.    Thus,       Plaintiffs      have       provided more                notice

and information than is required by the Rules, and this is not a

basis to dismiss these claims.

       In sum,          none of the District's remaining arguments support

a dismissal of Plaintiffs' claims.

                 4.      Plaintiffs Have Sufficiently Alleged That COH Is
                         a "Public Entity"

       COH argues that it is not subject to the ADA because it is

not    a     "public         entity."      COH     Mot.    at     5-8.       42    U.S.C.        §    12131

defines      a     "public      entity"      as    "any State or             local       government,"

and "any department,                 agency,      special purpose district,                     or other

instrumentality of              a    State or States             or    local       government."          42




                                                  -22-
u.s.c.       §   12131 (1) (A)    I     (B) .         The     term       "State"       includes      the

District of Columbia. Id.                   §    12103(2).

       The TAM notes that,                      "[i]n some cases,           it is difficult to

determine whether a particular entity that is providing a public

service .                is in fact a public entity." TAM                          §   II.l.2000.      It

then     lists         four    factors          to    be    considered       in    examining         "the

relationship            between       the       entity and         the    governmental        unit     to

determine whether the entity is public or private":

       1) Whether the entity is operated with public funds;

       2) Whether  the   entity's                          employees       are     considered
          government employees;

       3) Whether the entity receives significant assistance
          from the government by provision of property or
          equipment; and

       4)   Whether the entity is governed by an independent
            board selected by members of a private organization
            or a board elected by the voters or appointed by
            elected officials.

Id.

       It is undisputed that Plaintiffs have alleged that COH is

"operated with public funds," and that COH "receives significant

assistance        from the government                      by provision of property."                See

Compl.      ~    11.     COH     argues          that       this    is     insufficient       because

Plaintiffs have               failed    to allege            that    COH    "employs government

employees        or      is    governed          by     a    board       elected       by   voters    or

appointed by elected officials." COH Mot. at 8.
                                                     -23-
        The   TAM    does     not     state       that    all    four        factors       must       be

satisfied for an entity to be considered "public."                                       Rather,       it

notes     that      all     four    are        "[f]actors       to     be     considered.             TAM

§   II.1.2000.      Thus,    COR's insistence that Plaintiffs'                           claim must

fail    because they have not                  alleged all       four of these                 factors

lacks merit.

        COH cites a number of cases that concluded -- on motions

for     summary      judgment       on     a     full     factual          record              that     a

particular entity is private. See COH Mot. at 6-7 (citing Edison

v. Douberly, 604 F.3d 1307, 1311 (11th Cir. 2010); Green v. City

of New York, 465 F.3d 75, 79                    (2d Cir. 2006); Maxwell v. S. Bend

Work Release Ctr.,            787 F.       Supp.       2d 819,       822    (N.D.    Ind.       2011);

Obert v. The Pyramid, 2005 WL 1009567                       (W.D. Tenn. 2005); Doe v.

Adkins, 110 Ohio App. 3d 427, 434-35 (1996)).

        COH   argues      that      the    analysis       relied       on     in    these        cases

should be        applied here.            Given    that    there       is    no     full       factual

record in this case and that Plaintiffs have alleged sufficient

facts that,       in combination with "all reasonable inferences"                                      in

Plaintiffs'       favor,      support          their    claim    that       COH     is     a    public

entity providing a public service,                        the Court will not dismiss

the ADA claim against COH at this time.                              See Aktieselskabet AF

21., 525 F.3d at 17 (internal quotations and citations omitted).



                                                -24-
                5.      Plaintiffs Have Sufficiently Alleged that COH Is
                        a Recipient of "Federal Financial Assistance"

        COH      also      argues              that     it      is     not        subject         to     the

Rehabilitation            Act     because              it     does     not        receive        "federal

financial assistance." COH Mot.                         at 13-15. Relying on cases from

other Circuits,           COH argues             that        "purely compensatory payments"

do     not     constitute       federal          financial       assistance,          but       "payments

that include a           subsidy" do constitute such assistance.                                 COH Mot.

at     13-14     (citing    Jacobson             v.     Delta    Airlines,          Inc.,        742    F.2d

1202,    1209     (9th Cir. 1984), and DeVargas v. Mason & Hanger-Silas

Mason Co., Inc.,          911 F.2d 1377, 1382                   (lOth Cir. 1990)).

        Those     cases     held      that        courts       should       look    to        whether    the

federal        entity     providing             the    alleged       assistance           intended       "to

provide assistance or merely to compensate."                                     Jacobson,       742 F. 2d

at     1210;    DeVargas,       911       F.2d at           1382-83;       see    also        Shepherd v.

U.S.    Olympic Comm.,           94       F.    Supp.       2d 1136,       1146     (D.       Colo.    2000)

(noting        that     "[t]he     test          to     determine          whether        a    government

transfer of money to an entity is a subsidy is whether Congress

or     the     federal    agency          administering              the    program           intended    to

subsidize the entity.")

        Plaintiffs       allege       that        COH       "receives       federal       and District

funds    for homeless programs,                       health programs and other programs

and    services."        Compl.       ~    11.    In addition,             they allege           that    COH


                                                      -25-
"has    received        substantial          recent       federal    grants     from    [the

Departments of Health and Human Services] and [Housing and Urban

Development]."          Compl.    ~   11.    Health and Human Services              ("HHS")

has promulgated a regulation specifically noting that grants of

funds are federal financial assistance.                      42 C.F.R.     §   84.3 (h) (1).

For purposes of this motion to dismiss,                         these allegations,        in

conjunction with the HHS regulation,                       are sufficient to support

Plaintiffs'        claim         that       COH      receives       federal       financial

assistance.       See    Shepherd,      94    F.     Supp.   2d at      1146-47    (denying

defendant's argument that claim should be dismissed as a matter

of law where plaintiff alleged defendant received federal grant,

based   on    "the      broad    definition          of    "financial     assistance"     in

Jacobson, cited with approval by the Tenth Circuit in DeVargas,"

and concluding that plaintiff "should be allowed the benefit of

discovery").

       Therefore,        the   Court    will       not    dismiss   the   Rehabilitation

Act claims against COH at this time.

             6.      Summary

       Plaintiffs have sufficiently pleaded claims under both the

ADA and the Rehabilitation Act for both declarative relief and

compensatory damages.




                                              -26-
        B.       Count II: Plaintiffs Have Sufficiently Alleged a Claim
                 Under the Fair Housing Act

        In 1968,          Congress    passed the         Fair Housing Act                  ("FHA")     as

Title VIII of the Civil Rights Act.                        Pub.     L.    90-284,         Title VIII,

§    804,    82 Stat.      83   (1968),     codified at 42 U.S.C.                 §   3601 et seq.

As    originally enacted,             the    FHA prohibited discrimination based

on race,         color,    religion, or national origin.                   Id.; see also City

of Edmonds v.           Oxford House,        Inc.,      514 U.S.         725,    728 n.1          (1995).

The Supreme Court has emphasized that the language of the FHA is

"broad        and       inclusive,"         and     must       be        given        a     "generous

construction."            Trafficante       v.    Metro.     Life        Ins.     Co.,      409     U.S.

205,    209,      212     (1972);    see also Samaritan Inns,                   Inc. v.      Dist.     of

Columbia, 114 F.3d 1227, 1234                    (D.C. Cir. 1997).

        In    1988,       Congress     amended     the     FHA      to    extend          coverage     to

individuals with disabilities.                    See    The      Fair Housing Amendments

Act    of    1988,      Pub.    L.   No.    100-430,       102      Stat.       1619.       The    Act's

definition of discrimination was expanded to include "a refusal

to make reasonable accommodations in rules,                              policies, practices,

or services, when such accommodations may be necessary to afford

[handicapped            persons]     equal       opportunity         to     use       and    enjoy      a

dwelling." 42 U.S.C.             §   3604 (f) (3) (B).

       As    a    preliminary matter,             Plaintiffs make               clear that         their

FHA claim is a             "failure to accommodate"                 claim.       Compl.      ~    108 (c)


                                                 -27-
(citing 42 U.S.C.                §   3604     (f) (3) (B)); Opp'n at 26. Such "failure

to    accommodate"           claims           do    not       require      proof       of     intentional

discrimination.             See Cinnamon Hills Youth Crisis Ctr. ,                                 Inc.   v.

St. George City, 685 F.3d 917, 922-23                                 (lOth Cir. 2012)            ("A claim

for    reasonable            accommodation                               does     not        require      the

plaintiff           to    prove       that         the    challenged        policy           intended      to

discriminate                         . ") .    The       District       argues        to    the    contrary

relying solely on 2922 Sherman Ave.                                  Tenants'    Ass'n v. Dist. of

Columbia,       444 F.3d 673             (D.C.       Cir.      2006)        which does not even

address any failure to accommodate claims. Thus,                                           the District's

argument that Plaintiffs'                      FHA claims fail for failure to allege

intentional           discrimination               lacks       any     merit      and       no    case    law

supports it. See Mot. at 15-16.

      Moreover,             the      District            is     incorrect         that        Plaintiffs'

characterization of their FHA claims as "failure to accommodate"

claims constitutes an abandonment of any other claims. Reply at

11. A failure to accommodate is a form of discrimination under

3604 (f) (3)    i        sections        (f) (1)         and     (f) (2)        set     out       different

conditions           under       which        such       discrimination           is        unlawful.      42

u.s.c.      §       3604 (f) .        Plaintiffs               are      pursuing            "failure       to

accommodate" claims under both subsections (f) (1) and (f) (2).

      The Court will now turn to the substantive arguments raised

by the District and COH.
                                                     -28-
                    1.     "Dwelling"

        The District and COH argue that neither DC General nor the

Girard Street Apartments is a "dwelling" under the FHA. The FHA

defines         a        "dwelling"           in     relevant       part     as     "any        building,

structure, or portion thereof which is occupied as, or designed

or    intended            for     occupancy          as,     a    residence        by    one     or   more

families." 42 U.S.C.                   §    3602(b).

        The FHA does not,                    however,       define "residence." Most courts

that have considered the scope of the term have relied on the

definition used in United States v. Hughes Memorial Home, 396 F.

Supp.     544        (W. D.     Va.    197 5) ,     which is        "a temporary or permanent

dwelling        place,          abode        or    habitation       to     which    one     intends      to

return as distinguished from the place of temporary sojourn or

transient            visit."          Id.     at     549     (citing       Webster's        Third       New

International Dictionary); see Defiore v. City Rescue Mission of

New Castle, No.                 12-1590,          2013 WL 7157990,         at *3        (W.D.   Pa. Dec.

12,   2013);         Jenkins v.             New York City Dep't of Homeless Servs.,

643 F. Supp. 2d 507,                       517-18    (S.D.N.Y. 2009)          (noting that courts

"have continued to look to the Hughes                                 'plain meaning'            analysis

in determining what constitutes a dwelling under the FHA") aff'd

on    other grounds,                  391    F.     App'x    81     (2d    Cir.    2010);       Woods    v.

Foster,    884 F. Supp. 1169, 1173                          (N.D.   Ill.    1995)       (listing cases

citing Hughes).
                                                      -29-
       Applying the definition used in Hughes, several courts have

concluded that temporary homeless shelters are "dwellings" under

the FHA. Defiore, 2013 WL 7157990, at *3-*4; Boykin v. Gray, 895

F. Supp. 2d 199, 207          (D.D.C. 2012); Jenkins,             643 F. Supp. 2d at

517-18; Woods,       884 F.   Supp. at 1173-74. Other courts have noted

without deciding that it is likely that at least some temporary

shelters are        "dwellings."     Cmty.   House,    Inc.       v.    City of Boise,

490 F.3d 1041, 1044 n.2         (9th Cir. 2007)       (en bane).

       The District and COH argue that this Court should instead

rely     on   two    cases    that    concluded       that    temporary           homeless

shelters were not "dwellings." The first case, Johnson v. Dixon,

786 F. Supp. 1 (D.D.C. 1991), is not persuasive, since it merely

expressed     "doubt"    that    an    emergency      overnight          shelter      would

qualify as a dwelling, and then assumed without deciding that it

did so for purposes of its analysis.               Id.    at 4.         This expression

of "doubt," with no analysis,            is neither holding nor persuasive

dicta.    In any event,       it is certainly not,           as Defendants argue,

"the law of this Circuit."

       The second case,       Intermountain Fair Hous.                 Council v. Boise

Rescue    Mission     Ministries,     717    F.   Supp.      2d    1101     (D.     Idaho),

aff'd on other grounds,         657 F.3d 988       (9th Cir.           2011),     concluded

on a motion for summary judgment, not a motion to dismiss,                             that

a particular homeless shelter did not qualify as a                          "dwelling."
                                        -30-
Id. at 1109-12. The procedural distinction between that case and

this    one   is     significant.      To         justify    its   conclusion,     the

Intermountain court analyzed many specific factors regarding the

terms of residence at the shelter - a factual analysis that is

clearly inappropriate at            this    stage     in these proceedings.        See

Abigail Alliance for Better Access to Developmental Drugs v. Von

Eschenbach,    495    F.3d   695,     723     (D.C.    Cir.    2007)   (noting    that

factual questions were "not properly resolved at the motion-to-

dismiss stage when all         reasonable inferences must be drawn to

the plaintiff's benefit").

       Moreover,     the   facts     upon     which    the    Intermountain      court

based its conclusion are very different from the facts alleged

here. The court relied on the following evidence:

        [G]uests of the shelter are not charged a fee for
       staying in the shelter; are assigned a bed in a
       dormitory-style room, a hallway, or the day room;
       generally are allowed to stay for a maximum of
       seventeen consecutive nights (except during the winter
       months when the maximum stay is more flexible due to
       the danger that cold weather presents to homeless
       individuals during the night); are not guaranteed the
       same   bed  each night    they return;   with  limited
       exceptions, are not allowed to stay at the shelter
       during the day, are required to leave the shelter
       every morning by 8:00 a.m., and may not return, except
       for lunch, until 4:00 p.m.; are not allowed to leave
       the shelter once they arrive in the evening; generally
       are not allowed to stay at the shelter on a particular
       evening if they do not check in during the designated
       hours; are not allowed to personalize the bed area
       assigned to them or leave belongings in their bed
       area; and, with extremely limited exceptions, are not
                                           -31-
       allowed to receive phone calls, mail, or have visitors
       at the shelter.

717 F. Supp. 2d at 1111.

       In contrast,       Plaintiffs allege that there is no time limit

set on how long residents can remain at either D.C. General or

the Girard Street Apartments,                and that the Hunters expected to

remain there indefinitely.              Compl.      ~~   42-43        (D.C.      General);      ~    57

(Girard Street Apartments) .               Indeed,       the Hunters stayed at both

shelters    longer than the             seventeen-day maximum imposed by the

shelter     at    issue    in     Intermountain.           Id.        ~~   37,    56     (alleging

Hunters    stayed at       D.C.    General        between December                7,    2011,       and

December 29, 2011);         ~~    69, 88    (alleging Hunters stayed at Girard

Street     Apartments      between       December         29,        2011,       and    March       12,

2 012) .

       In addition,       the Hunters allege that D.C. General provides

families with their own rooms, guarantees individuals the right

to access their rooms at all times of the day,                                allows families

to return to the same room each day,                           and permits             families      to

keep their belongings in their room.                     Id.     ~    43. The Hunters also

allege     that    Community       of      Hope     gives        each        family       its       own

apartment- style room with a key,                  requires staff to give notice

before     entering       apartment        units,        and     permits          residents          to




                                            -32-
decorate       their       units     and    place    personal          items          in    them.     Id.

~~    64-67.

       All of these factual allegations support Plaintiffs'                                         claim

that both D.C. General and the Girard Street Apartments are "a

temporary                  dwelling place, abode or habitation to which one

intends to return as distinguished from the place of temporary

sojourn or transient visit," Hughes,                       396 F. Supp. at 549. Thus,

neither         Johnson        nor         Intermountain           supports                 dismissing

Plaintiffs' FHA claim at this time. See Boykin,                                   895 F. Supp. 2d

at     206-07      (rejecting         District's           reliance             on     Johnson        and

Intermountain,         and holding that             the FHA was not                   categorically

inapplicable to homeless shelters).

        In     addition,       the         Department        of        Housing             and      Urban

Development        ( "HUD")          has     promulgated           a        regulation              which

explicitly        identifies          "sleeping       accommodations                   in     shelters

intended for occupancy as a residence for homeless persons" as

an example of          a    "dwelling unit."          24    C.F.R.          §   100.201.         HUD is

"the    federal    agency primarily charged with                            the      implementation

and administration" of the FHA. Meyer v.                           Holley,           537 U.S.        280,

287     (2003)      The       District       has     offered           no       reason       why      the

regulation        should       not     be     entitled        to       the           deference        due

reasonable agency interpretations. See Chevron, 467 U.S. at 844;

see also United States v. Univ. of Neb. at Kearney, 940 F. Supp.
                                              -33-
2d   974,   981       (D.    Neb.    2013)      (deferring         to    HUD's     definition of

"dwelling unit");            Cmty.    House,         490   F.3d at        1044-45 n.2           (noting

that    "the        regulations       interpreting           the        coverage    of     the     FHA

specifically          contemplate             that     'residences'          within        homeless
                                                      11
shelters qualify as 'dwellings'")

       In   sum,      Plaintiffs       have      sufficiently            alleged        facts    that,

with "the benefit of all reasonable inferences," Aktieselskabet

AF   21.,   525       F.3d    at    17,       support      their    claim        that    both     D.C.

General and the Girard Street Apartments were "dwellings" under

the FHA.

               2.      "Sale or Rental" and "Buyer or Renter"

       The District and COH also argue that Plaintiffs have failed

to state a claim under the FHA because they are not "buyer[s] or

renters" who were discriminated against in the "sale or rental"

of a dwelling. Mot. at 11-12; COH Mot. at 10-13.

       Plaintiffs bring claims under two subsections of the Fair

Housing     Act.      42     U.S.C.       §   3604 (f) (1)    and         (2).    Both     sections



11
   COH argues that there is a distinction between a "dwelling
unit" and a "dwelling," COH Reply at 5-6, but it cites no
authority in support of      that proposition.   Moreover, HUD's
regulation on "reasonable accommodations" specifically uses the
term "dwelling unit." 24 C.F.R. § 100.204 ("It shall be unlawful
for any person to refuse to make reasonable accommodations in
rules,    policies,   practices,    or   services,   when   such
accommodations may be necessary to afford a handicapped person
equal opportunity to use and enjoy a dwelling unit, including
public and common use areas.").
                               -34-
require     that     the      discrimination occur                   in    connection with       the

"sale or rental of a dwelling."

        Some courts have noted the difficulties of establishing a

violation       of     section        3604(f)           in     the        context    of     homeless

shelters.       See Boykin,         895 F.       Supp.       2d at 210           (expressing doubt

that FHA claim was cognizable given that former residents of a

homeless shelter were neither buyers nor renters)i Johnson,                                      786

F. Supp. at 4 ("Plaintiffs, and the other inhabitants of the two

shelters,       are neither         [buyers nor renters].                   Such accommodations

as they have had at the shelters in the past have been provided

gratis by the District.")              i    see also Forziano v. Indep. Grp. Home

Living Program,          Inc.,      No.     13-0370,         2014 WL 1277912,             at *8 n.5

(E.D.N.Y. Mar. 26, 2014)                  ("Since [plaintiffs] are not renters or

buyers     in    their     respective            group       homes,        but     rather    receive

supervised       housing       as     part       of    their     Medicaid          services,    they

cannot state a claim for relief under the FHA.").

      However,         none      of        those        courts        addressed        Plaintiffs'

argument        that       federally-funded                  shelters        fall      under     the

definition of the term "to rent" in the FHA. The FHA defines "to

rent" as "to lease,             to sublease,            to let and otherwise to grant

for a    consideration the right to occupy premises not owned by

the   occupant."         42    U.S.C.        §    3602(e).       Plaintiffs           allege    that

Defendants         receive          federal           funds,     and         argue     that     this
                                                 -35-
constitutes "considerationn                    for giving homeless individuals the

right     to    occupy          rooms     in       homeless         shelters.       Opp'n       at     23;

Statement of Interest at 25-26.

        A handful of courts have considered this argument and found

it persuasive. See Woods, 884 F. Supp. at 1175 (holding that the

receipt of federal funds in return for providing shelter for the

homeless was sufficient to establish that defendants "rent[ed]n

the shelter); Anonymous v.                     Goddard Riverside Cmty.                   Ctr.,       Inc.,

No.    96-9198,       1997 WL 475165,              at *3 n.4        (S.D.N.Y. July 18, 1997)

(assuming federal funds constitute consideration for housing for

purposes of resolving motion to dismiss) ;                                 cf.    Wai v.    Allstate

Ins.     Co.,        75    F.     Supp.       2d    1,    7     (D.D.C.          1999)     (rejecting

contention that section 3604 (f) (2)                      "only applies to landlords or

providers of housingn).

        Defendants argue that this Court should instead follow the

district court in Jenkins,                    643 F. Supp. 2d at 519, which stated

that a     "far more plausible reading of the statute would limit

the word 'rent'            to consideration paid by the person who has the

right    to     occupy          the   dwelling.n          However,         the     Second       Circuit

specifically          noted       that     the       district         court       had      "erred       in

reaching       the    question of          whethern           the    plaintiff       was    a    renter

under    section          3604 (f).     391    Fed.       App'x      81,    83     (2d   Cir.        2010)

(upholding district court's conclusion that plaintiff had failed
                                                   -36-
to   state     an    FHA claim on other grounds) .                   Thus,      the      district

court's decision in Johnson has no precedential value on this

issue.

       Moreover, the Court finds that this case is more similar to

Defiore,      2013    WL     7157990,       in which        the    court      observed       that,

"[w]hat       qualifies       as    consideration           under       the   FHA     has     been

examined by a limited number of courts and this Court finds that

resolution      of    the     issue        will    turn     on    whether      [the      shelter]

receives consideration for a                  resident's stay -- whether it be

from federal or other funding directed to subsidizing the costs

of     providing      housing         to     the     homeless       or     whether        shelter

residents provide            some     form of       consideration for           their stay."

Id. at *4.

       In sum,       Plaintiffs have alleged that the District and COH

receive federal        funds in order to provide homeless individuals

with     programs      and     services,           including      the     right     to      occupy

certain premises.            Compl.       ~~ 8,     11.    These allegations          and     "all

reasonable      inferences"           therefrom,          Aktieselskabet       AF     21.,     525

F.3d at 17       (internal quotations and citations omitted),                             satisfy

the broad definition of                "to rent"          set out    in the statute,            42

U.S.C.    §   3602(e),       particularly in light of the Supreme Court's

direction       to     give         the      statute        "generous         construction."

Trafficante, 409 U.S. at 209, 212.
                                              -37-
        This reading of the definition of "rent" makes sense in the

context           of     subsection          (f) (2),         which         makes           it     unlawful       to

"discriminate             against         any person          in      the       terms,        conditions,         or

privileges of              []     rental    of a        dwelling,           or in the provision of

services          or     facilities         in    connection              with       such        dwelling."       42

U.S.C.        §    3604 (f) (2).        Plaintiffs            have        alleged            that       they    were

discriminated against in the provision of services or facilities

that      appropriately                   accommodated                A. H. Is         handicap.               Thus,

Plaintiffs             have     sufficiently            stated        a     claim       under           subsection

3604 (f) (2).

        A harder question                  is whether            a    broad construction of                      the

term     "rent"         can     still      save    Plaintiffs'              claim under                 subsection

3604(f) (1). That provision makes it unlawful to "discriminate in

the sale or rental,                 or to otherwise make unavailable or deny,                                      a

dwelling          to     any      buyer     or    renter         because          of     a       handicap."       42

u.s.c.    §       3604 (f) (1).

        The primary problem is that the discrimination in the sale

or   rental            under      subsection           (f) (1)       must       be     to        "any    buyer    or

renter."          Id.     Even      under    Plaintiffs'              construction                 of    the    term

rent,    the "renters" are the federal agencies that provide funds

to   Defendants,              not    the    Plaintiffs.              The        statutory           language      of

subsection              (f) (1)     seems         to      limit           the        scope        of     unlawful



                                                       -38-
discrimination to the entity buying or renting the dwelling in

question.

        The United States argues that                   "courts have applied the FHA

to encompass a wide variety of conduct that does not involve a

refusal to sell or rent housing to owners or tenants." Statement

of   Interest at 24           &   24 n. 16.     It cites several cases that have

interpreted the phrase                "otherwise make unavailable or deny"                     to

expand the scope of the FHA.                   The Court notes that cases in this

District      have        similarly     found    that     section      3604 (a)      reaches     a

broad range          of    actors whose        actions    affect      the     opportunity to

buy or rent          a    dwelling.     Greater New Orleans            Fair Hous.        Action

Ctr.    v.   Dep't of Hous.           & Urban Dev.,       723 F.      Supp.     2d 14,    22-23

(D.D.C.      2010)        (permitting plaintiffs to pursue claim that grant

program       for         disaster      recovery        prevented          homeowners         from

inhabiting        their      homes);      Nat'l       Cmty.      Reinvestment        Coal.     v.

Accredited Home Lenders Holding Co.,                      573    F.   Supp.    2d 70,     76-77

(D.D.C.      2008)       (permitting claim against mortgage lenders); Nat'l

Cmty.    Reinvestment          Coal.    v.     Novastar    Fin.,      Inc.,    No.     07-0861,

2008 WL 977351, at *1-*3               (D.D.C. Mar. 31, 2008).

        However,          these   cases        were    brought        under     a    different

subsection        of       section     3604,     which    makes       it    unlawful      "[t]o

otherwise      make       unavailable        or deny[]     a    dwelling      to    any person

because      of      race,    color,      religion,       sex,     familial         status,     or

                                               -39-
national origin."                 42 U.S.C.             §    3604 (a)         (emphasis added);             compare

id.     §    3604 (f) (1)           (making             it        unlawful           "to     otherwise           make

unavailable           or     deny[]           a    dwelling              to     any    buyer        or    renter")

(emphasis added).                 See,    e.g.,          N.A.A.C.P. v.               Am.     Family Mut.          Ins.

Co.,    978      F.2d      287,     301           (7th       Cir.       1992)     (holding        that      section

3604        "applies         to     discriminatory                      denials        of     insurance,           and

discriminatory pricing,                       that          effectively preclude                  ownership         of

housing       because         of    the           race       of     the       applicant").          Thus,        these

cases       do    not      provide            support             for     the    proposition              that     the

"otherwise            make        unavailable                 or     deny"        language          in      section

3604 (f) (1)      means that Plaintiffs do not have to establish that

they were a "buyer or renter.,,

        Even in light of the Court,s obligation to construe the FHA

as     broadly        as     possible,             the         clear          language       of     the     statute

restricts         the      class         of       people           who    can        bring    a     claim        under

section 3604(f) (1)                to a       "buyer or renter," or,                         at its broadest,

individuals who were otherwise denied the opportunity to become

a    buyer       or   a    renter.            There          is     no    such        allegation          that     the

Hunters       fall        into     either          category.              Therefore,          the    Court        must

conclude         that      the     Hunters          have           failed       to    sufficiently           allege

that    the District or COH discriminated against                                            them as        "buyers

or renters" under 42 U.S.C.                         §       3604 (f) (1).



                                                            -40-
              3.        Summary

       Plaintiffs         have     sufficiently           alleged       that     the        homeless

shelters at issue in this case should be considered "dwellings"

under the      FHA.       Plaintiffs have also              sufficiently alleged that

Defendants          received        some         consideration          in      exchange            for

permitting them to reside in such dwellings,                            such that they can

proceed      with       their    claim      of       discrimination       under        42     U.S.C.

§   3604 (f) (2).       However,    Plaintiffs have not sufficiently alleged

that they are "buyer[s]" or "renter[s]" such that they may bring

a claim under 42 U.S.C.             §    3604 (f) (1).

       C.     Count IV: Plaintiffs Have Sufficiently Alleged Claims
              Under the District of Columbia Human Rights Act

       The   Hunters        argue       that     Defendants       have    violated           several

provisions         of     the    District         of     Columbia        Human       Rights      Act

("DCHRA"),         D.C.    Code     §§    2-1401.01        et    seq.     The       District         of

Columbia     Court        of    Appeals        has      noted    that    the        DCHRA     "is     a

remedial      civil         rights        statute         that     must        be      generously

construed."        See    Lively v.        Flexible        Packaging Ass'n,             830     A.2d

874, 887     (D.C. 2003)         (quoting Executive Sandwich Shoppe,                         Inc. v.

Carr Realty Corp., 749 A.2d 724, 731 (D.C. 2000)).

       The District and COH challenge Plaintiffs' six DCHRA claims

as deficient for different reasons. The Court shall address each

claim in turn.


                                                 -41-
                  1.     Plaintiffs Have Sufficiently Stated a Claim Under
                         D.C.   Code     § 2-1402.21(d) (2), But Not  § 2-
                         1402.21 (d) (1)

         First,        the District and COH argue that Plaintiffs'                                          claims

under      section        2-1402.21(d)           of        the     DCHRA       fail        for        the     same

reasons           that      Plaintiffs'          FHA         claims        fail;           namely,            that

Plaintiffs are neither "buyer [s]                      11
                                                                nor "renter [s]       11
                                                                                            and that the

shelters at            issue are not            "dwellings.        11
                                                                         See Mot.          at 16-17;           COH

Mot. at 15-16.

        Defendants          are    correct         that          section       2-1402.21(d)                 makes

discrimination associated with the sale or rental of a dwelling

unlawful        in language that parallels the analogous provision of

the      FHA.      Compare        D.C.     Code        §    2-1402.21(d)           with          42     U.S.C.

§    3604 (f) .    "District of Columbia courts                          interpreting the DCHRA

'have generally looked [for guidance]                              to cases from the federal

courts'      arising under federal                    civil       rights statutes.               11
                                                                                                      Whitbeck

v.     Vital       Signs,       Inc.,     116     F.3d          588,     591     (D.C.       Cir.            1997)

(quoting        Benefits        Comm'n         Corp.       v.     Klieforth,          642    A.2d            1299,

1301-02         (D.C.    1994));         see    also        Paralyzed       Veterans             of     Am.     v.

Ellerbe Becket Architects & Eng'rs,                              P.C.,    950 F.       Supp.          393,     405

(D.D.C. 1996)            ("The D.C. courts have always looked to cases from

the federal            courts     in interpreting the D.C.                      Human Rights Act,

and     have      followed,        wherever        applicable,             precedents                 from     the



                                                  -42-
federal courts' treatment of comparable civil rights statutes.                                                   11
                                                                                                                      )




(citations omitted) .

       As discussed above, see supra Sec. III.B.1, Plaintiffs have

sufficiently stated facts                          in their complaint to support                           their

claim     that           the       shelters         in        question           are     "dwellings.      11
                                                                                                                 In

addition, although Plaintiffs have failed to sufficiently allege

they     are        "buyer[s]           or         renter [s]    11
                                                                           to     satisfy        section         2-

1402.21(d) (1) of the DCHRA, there is no such language in section

2-1402.21(d) (2) of the DCHRA. See supra Sec. III.B.2                                             (discussing

difference          in    language          between provisions                     of    the     FHA) .    Thus,

because    this           section        of        the        DCHRA        and     the     FHA        should     be

interpreted          in        a    parallel        fashion,          the        Court     concludes           that

Plaintiffs           may           proceed          on         its         claim         that         Defendants

discriminated             against        them            in     the        "terms,        conditions,            or

privileges of sale or rental of a dwelling or in the provision

of   services            or        facilities        in        connection           with        the     dwelling

because of a disability,                     11
                                                   D.C.       Code    §    2-1402.21(d) (2),            but not

on its    claim that Defendants discriminated against                                             them under

section 2-1402.21(d) (1).

               2.         Plaintiffs Have Sufficiently Stated a Claim Under
                          D.C. Code§ 2-1402.2l(d) (3) (D)

       In a      footnote,            the         District       argues          that     Plaintiffs           have

failed    to        assert          facts         sufficient              to     support        their     claims

                                                      -43-
"regarding the accessibility of their units."                                         Mot.    at 17 n.13.

This      argument       seems      to    be     challenging          Plaintiffs'                 claim     that

they       were      discriminated                   against        under            D.C.         Code      §    2-

1402.21 (d) (3) (D) . That section defines "unlawful discrimination"

to include a         failure         to ensure that premises within a dwelling

contain     "[a] n       accessible route               into and through the dwelling,"

and      "usable kitchens            and bathrooms             so that           an individual              in a

wheelchair can maneuver about the space." Compl.                                        ~~    123(a),       (b);

see D.C. Code        §    2-1402.21(d) (3) (D) (i),                 (iv).

         Plaintiffs       have       sufficiently           alleged             facts        to    support        a

claim that         both D.C.         General          and   the     Girard Street Apartments

did not include accessible routes into the building and/or their

units.     See Compl.          ~    46    (alleging that A. H.                   could not get              into

front     door of D.C.             General because ramp is                       "excessively steep"

and sidewalk is broken);                   ~    72    (ramp leading up to Girard Street

Apartments was           not       accessible         for A. H.);         ~     73     (wheelchair lift

in Girard Street Apartments was                          broken) ;          ~    74    (no        elevator       in

Girard Street Apartments to get to third floor apartment);                                                  ~ 75

(hallways       within      Girard         Street        apartment              were       too     narrow        to

accommodate        wheelchair) .               They    have        also       sufficiently               alleged

that     D.C.     General      did       not    include        a    usable        bathroom.           See       id.

~   47    (bathroom       in       D.C.    General          unsuitable               for     A.B.'s       needs



                                                     -44-
because she had to be supported by Hunter and he could not hold

her and operate shower at same time) .

        Thus,    Plaintiffs have alleged facts                           sufficient to proceed

on their claims under sections 2-1402.21 (d) (3) (D) (i) and (iv)                                       of

the DCHRA.

                3.     Plaintiffs Have Sufficiently Stated a Claim Under
                       D.C. Code§ 2-1402.3l(a) (1}

                       a.            Intentional Discrimination

        Plaintiffs allege that Defendants have violated section 2-

1402.31(a) (1)         of       the        DCHRA,     which       establishes,          among     other

things,     that      it        is    an     "unlawful       discriminatory             practice"       to

"deny,    directly or                indirectly,          any person the           full    and equal

enjoyment        of     the          goods,        services,        facilities,           privileges,

advantages,           and        accommodations              of     any     place         of     public

accommodations"             because           of     a      disability.          D.C.     Code      §   2-

1402.31 (a) (1) .

        In a footnote,               the District argues that this section of the

DCHRA     requires          a    plaintiff           to     plead    and     prove        intentional

discrimination.            Mot.        at    16     n.12.    It     is    true    that     the    DCHRA

includes language, which is not included in either Title III of

the ADA or Title II of the Civil Rights Act, 12 requiring that the


12
  Defendants discuss Title III of the ADA, 42 U.S.C. § 12181 et
seq., which prohibits discrimination on the basis of disability
in the "full and equal enjoyment" of "any place of public
                                                    -45-
discriminatory act be "wholly or partially for a discriminatory

reason based on the actual or perceived .                          . disability." Mot.

at 16 n.12.

       However, the parties have identified no case that discusses

a    plaintiff's      burden      to    prove    a    defendant     acted      "wholly      or

partially      for        a    discriminatory         reason"      under       the    public

accommodations        section      of    the    DCHRA.    Even     if    the   burden       for

pleading intentional discrimination was the same in this context

as   it is in the FHA context,                  the Court has already concluded

that Plaintiffs have met that burden at this stage.                              See supra

Sec.    III.A.4.      Therefore,        the    Court     will    allow     Plaintiffs        to

proceed on their claim against the District for discrimination

in the provision of public accommodations under D.C.                             Code   §    2-

1402.31(a) (1) at this time.

                     b.        "Place of Public Accommodation"

       COH   argues       that   the    Girard       Street     Apartments      are   not     a

"place of public accommodation" under the DCHRA. See COH Mot. at

16-17; COH Reply at 17. Specifically, it argues that the DCHRA's

enumerated     list       of   "places    of    public     accommodation"        does       not




accommodation."   Mot.   at  16   n .12 (discussing  42  U.S. C.
§ 12182 (a)). In addition, the Court notes that Title II of the
Civil Rights Act, 42 U.S.C. § 2000a et seq., also outlaws
discrimination in the provision of public accommodations. 42
U.S.C. § 2000a(a)
                               -46-
include       a     homeless       shelter.       Id.       (citing       D.C.     Code         §   2-

1401.02 (24)).

        Section 2-1401.02(24) of the DCHRA defines places of public

accommodation as "all places included in the meaning of" a long

list     of    terms.      D.C.     Code     §   2-1401.02(24)            Although        COH        is

correct that homeless shelter is not one of the terms listed,                                         a

member of this court has already noted that the term "place of

public accommodation"              is defined "broadly" under the DCHRA and

"would seem to include homeless shelters." Boykin,                                895 F. Supp.

2d at 217 n.16.

       Moreover,          the      parallel         provision            defining         "public

accommodation"            under      Title       III        of     the     Americans            with

Disabilities Act,           42     U.S. C.   §   12181,      does    include       a   homeless

shelter       as    an    entity     considered         a   public       accommodation.              42

U.S.C.    §   12181 (7) (K).       Given that D.C.           courts look for guidance

to the parallel federal civil rights statutes,                             see Boykin,              895

F.    Supp.    2d    at   219     (citation      omitted),         and    in   light      of        the

District of         Columbia's determination that                   the DCHRA should be

"generally         construed,"       Lively,      830       A.2d    at     887,     the     Court

concludes that the Girard Street Apartments should be considered

a    "place of public accommodation" under section 2-14 02. 31 (a) ( 1)

of the DCHRA.



                                             -47-
              4.     Plaintiffs Have Sufficiently Stated a Claim Under
                     D.C. Code § 2-1402.73

        Section     2-1402.73         of     the    DCHRA    establishes,                among    other

things,      that   it    is an       "unlawful discriminatory practice for a

District      government        agency        or    office       to       limit     or    refuse     to

provide any facility,              service, program, or benefit" on the basis

of an individual's disability. D.C. Code                         §    2-1402.73. 13

        Defendants        argue      that     Plaintiffs         have        failed       to     allege

sufficient facts to support this claim. First,                                    the          District

argues that Plaintiffs have failed to sufficiently allege that

any District         agency or         office       "limit [ed]"           or     "refuse [d]"      any

service      to     the    Hunters         because     no        such       agency        or     office

"directly interacted" with Plaintiffs. Mot. at 17; Reply at 13.

        The text of the statute does not contain or suggest such a

"direct interaction" requirement.                    In George Washington Uni v. v.

D.C. Bd.     of Adjustment,            831 A.2d 921          (D.C.         2003),    the District

of Columbia Court of Appeals discussed the provision and noted

that    it    "appears        to     be     directed        at       the    administration           of

District      of    Columbia         government      programs."             Id.     at     941    n.16.

Plaintiffs have alleged that                   they relied on the Department of

Human    Services         ( "DHS")     and    the    Office          of    Shelter        Monitoring

13
   Another member of this court has noted that, "[t] here is a
dearth of case law respecting this provision, which became
effective in 2002, and the [c]ourt has not located any decisions
applying it." Boykin, 895 F. Supp. 2d at 218.
                              -48-
("OSM")       to    ensure        compliance          with        federal          and     local          anti-

discrimination         provisions             and    to    maintain           records          of    shelter

inventory      and     information            relating           to       their    accessibility             to

those with disabilities. Compl.                       ~~   89-91. Construed in the light

most favorably to Plaintiffs, as this Court must, Aktieselskabet

AF     21.,   525     F.3d        at    17     (internal          quotations             and     citations

omitted),          these    allegations              support          a     claim        that       District

agencies      refused       to provide          an appropriate                "facility,            service,

program,      or benefit"          to the Hunters based on A.H.'s needs as a

disabled       individual.             Therefore,          the        Court       will     not       dismiss

Plaintiffs' claim under this section of the DCHRA on this basis.

        Second,      the District argues that homeless shelter services

are not the type of                "services"         covered by this provision.                           Mot.

at 17 n.14.         In support of its argument,                           it cites only one case,

A Society Without            a     Name v.          Virginia,          655    F. 3d      342     (4th Cir.

2011).    Society Without               a    Name    construed the                scope of          the    term

"services" under the FHA,                    42 U.S.C.       §    3604 (b)        and     (f) (2),        to be

limited to         "services generally provided by governmental units."

Id. at 349-50. However,                 the    relevant           section          of    the        DCHRA    is

much     broader       than        the        FHA     provisions,                 encompassing             "any

facility,      service,      program,          or benefit." D.C.                   Code § 2-1402.73;

compare 42 U.S. C.           §    3604 (b)      (making unlawful discrimination "in

the    provision       of        services      or     facilities") ;               id.     §    3 604 (f) (2)

                                                    -49-
 (same) . Thus, the Court is not persuaded that Society Without a

Name   provides          an adequate        basis    to   dismiss   Plaintiffs'   claim

under this section of the DCHRA at this time.

              5.         Plaintiffs Have Sufficiently Stated a Claim Under
                         D.C. Code § 2-1402.67

       Section 2-1402.67 of the DCHRA states:

       All    permits,    licenses,   franchises,   benefits,
       exemptions, or advantages issued by or on behalf of
       the government of the District of Columbia, shall
       specifically require and be conditioned upon full
       compliance with the provisions of this chapter; and
       shall further specify that the failure or refusal to
       comply with any provision of this chapter shall be a
       proper basis for revocation of such permit, license,
       franchise, benefit, exemption, or advantage.

D.C.   Code        §    2-1402.67.    The    District      argues   that   Plaintiffs'

claim under this section fails for two reasons. 14

       First,          the District   argues        that because    the Hunters have

failed to identify any particular document in which the District

14
   The District notes for the first time in its reply that
section    2-14 02. 67  only   references    "permits,  licenses,
franchises, benefits, exemptions, or advantages," but does not
specify "contracts." Reply at 13. Thus, it argues that the
Hunters'    allegations   regarding   contracts   are  inherently
insufficient.

The District does not explain why the contracts at issue here
should not    be   considered   "permits,  licenses,  franchises,
benefits, exemptions, or advantages." D.C. Code § 2-1402.67
(emphasis added) . Moreover, given the fact that the District
raised this argument for the first time in its reply brief, the
Court will not address it here. See supra n.7; see also St. Paul
Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 657 F.
Supp. 2d 243, 247 n.1 (D.D.C. 2009)        (declining to address
argument that was raised for the first time in reply brief) .
                               -50-
did not condition compliance with the DCHRA                            1    their claim must be

dismissed.          Mot.    at     18.    However   1     the    Hunters       allege         that    the

District       had       contracts        with     the       operators       of     the       shelters.

Compl.    ~    9-10. They also allege that the operators discriminated

against       them on the basis of disability/                             in violation of            the

anti-discrimination                provisions           of      the        DCHRA.       Id.      ~   122.

Plaintiffs argue             that      these allegations              that    the       shelters did

not comply with the DCHRA allow the Court to reasonably infer

that     the    District         did      not    condition       its       contracts          with    the

shelter operators on compliance with the DCHRA. Opp n at 29.                        1




       The     Hunters       are     correct       that      when     these       allegations         are

read together        1     it is reasonable to infer that the District did

not condition the contracts on compliance with the DCHRA. 15 Thus/

the    Court        will     not         dismiss    Plaintiffs/              claim       under       this

subsection of the DCHRA on that basis.

       Second   1    the District argues that even if the Hunters have

sufficiently alleged a violation of section 2-1402.67                                     1   the claim

must be dismissed because the District has                                   sovereign immunity



15
   Moreover 1 the Court has already ruled that the contracts
between the District and the other Defendants will be reviewed
for the purpose of determining the relationship between the
Defendants. See supra Sec. III.A.4.b. Whether those contracts
contain a provision requiring compliance with the DCHRA can be
resolved definitively once those contracts have been exchanged
in discovery.
                                                 -51-
regarding      "[e] nforcement              of    the DCHRA' s          compliance requirement

for permits and licenses." Mot. at 19.

      The doctrine of sovereign immunity protects the District of

Columbia from suit for its discretionary activities.                                            Nealon v.

Dist. of Columbia,              669 A.2d 685,             690    (D.C. 1995)           (citing Powell

v.   Dist.      of     Columbia,            602     A.3d        1123,       1126        (D.C.     1992)).

"Generally,          discretionary               acts      involve          the     formulation          of

policy, while ministerial acts involve the execution of policy."

Nealon, 669 A.2d at 690.

      Although the District describes the statute as "refer[ring]

to   enforcement       decisions,"               Reply     at     14,       the    language       of    the

statute does not support that interpretation.                                     Section 2-14 02. 67

states       that     the       District          "shall"         condition            its      "permits,

licenses,      franchises,             benefits,         exemptions,          or       advantages"       on

compliance      with    the           statute.      D.C.        Code    §   2-1402.67.          The    word

"shall"      creates        a    mandatory         obligation,              not    a    discretionary

ability to enforce. See Kakeh v. United Planning Org., Inc., 655

F.   Supp.    2d 107,           123     (D.D.C.     2009)        ("It       is well-settled that

when a    statute uses                the   term    'shall,'           it   creates       a     mandatory

duty."). The District fails to provide any convincing reason why

the use of the word "shall"                       in this statute suggests anything

other than a mandatory duty.



                                                   -52-
      The crux of the Hunters'                claim is not                that   the District

failed to enforce a provision it had in any particular contract

that required compliance with the DCHRA,                           but,    instead,    that it

failed to include such a provision at all.                           Because the statute

creates a mandatory duty to include such provisions,                                 it should

be considered a ministerial duty and outside the scope of the

District's sovereign immunity. Nealon,                       669 A. 2d at 690          ("If the

act is committed in the exercise of a ministerial function,                                      the

District is not immune.").

      In   sum,     Plaintiffs        have      sufficiently              alleged     that       the

District    failed       to   comply with         its mandatory duty to                 require

compliance        with    the     DCHRA      in    issuing           "permits,        licenses,

franchises,        benefits,      exemptions,           or     advantages,"           and        the

Plaintiffs'       claim       under   this        subsection         of     the     DCHRA        may

proceed.

             6.     Summary

      Plaintiffs         allege    claims       under        six     subsections        of       the

DCHRA.     Although       they    may     not      proceed          under        section     §    2-

1402.21 (d) (1),     they have sufficiently pleaded facts                           to support

their other five claims.




                                          -53-
        D.             Count V: Plaintiffs Have Not Sufficiently Alleged                                           a
                       Claim Under the Homeless Services Reform Act

        Defendants                   argue     that       Plaintiffs            have    failed      to    state    a

claim under the Homeless Services Reform Act                                            ("HSRA 11 ) , D.C. Code

§   4-751.01 et.                    seq.    The HSRA implements a                      "continuum of care,         11




defined as "the system of services for individuals and families

who are           homeless                or at    imminent          risk of becoming homeless                   and

designed           to           serve      clients       based       on    their       individual        level    of

need.   11
                 Id.        §   4-751.01(8).            The statute establishes standards for

all     providers                    of    services           to     the    homeless.         Id.    §   4-754.21

("Section 21 11 ) . The HSRA also requires that the District provide

"shelter           in           severe      weather,     11
                                                               id.     §   4-754.11(5),        and       specifies

additional              standards             required         for     providers         of   severe      weather

shelter. id.                    §   4-754.22      ("Section 22 11 ) .

                       1.           The District of                Columbia Court of Appeals Has
                                    Strictly Limited               Private Rights of Action Under
                                    the HSRA

        The        District's               first       argument           is   that     Plaintiffs        do    not

have         a    private             right       of     action       under       the    HSRA.      Section       4-

755.01(a)              of the HSRA states that                        "no provision of this chapter

shall        be    construed to                   create       an entitlement            (either direct           or

implied)                             to    any services              within the         Continuum of         Care,

other than shelter in severe weather conditions as authorized by

§   4-754.11(5) . 11                 Thus,        the     District          insists       that      Plaintiffs'


                                                              -54-
claims under the HSRA, other than a claim based on a failure to

provide shelter during severe weather, are precluded.

       The    District     of   Columbia      Court     of    Appeals      has      directly

addressed this section of the HSRA.                   In Baltimore v. District of

Columbia,      10   A.3d    1141    (D.C.     2011),     former         residents       of    a

homeless shelter brought suit under the HSRA arguing that the

District had failed to conform to the standards identified in

the statute as part of the "Continuum of Care." Id. at 1146-47.

The Court acknowledged that the statute created "standards"                                  in

Section 21, but concluded that the legislature did not intend to

"create a direct or implied entitlement to any other particular

service"      than the     right   to shelter in severe weather.                     Id.     at

1143-44. Consequently, the District is correct that there is no

private right of action available to Plaintiffs other than an

action to enforce the right to shelter in severe weather.

       The Hunters attempt to distinguish Baltimore on the ground

that   they are not        seeking any particular service,                    but    instead

are seeking to enforce "non-service rights." Opp'n at 29-30 & 30

n.4.   This    distinction      between       service     and      non-service          rights

appears nowhere in the statute, which lists all of the standards

in a single section without distinguishing between services and

non-services.       Moreover,      it   is    unclear        how   one    would      protect

"non-service        rights,"    such     as     the     right      to    be      free      from
                                         -55-
discrimination, without putting them in the context of provision

of services. Indeed, Section 4-754.21(10) does precisely that by

requiring          that        shelters        "[p]rovide              services        free    from

discrimination                          II
                                             D.C.       Code      §   4-754.21(10)         (emphasis

added).

       The District of Columbia Court of Appeals has interpreted

the scope of private rights of action under the HSRA narrowly,

and this Court is bound by that determination. See In re Sealed

Case (Medical Records), 381 F.3d 1205, 1211 n.5                                   (D.C. Cir. 2004)

 (noting      that       the    District           of    Columbia           Court     of   Appeal's

interpretation of              District       of    Columbia          law    is   authoritative).

Therefore,        Plaintiffs'      claims under the HSRA,                      other than those

related      to    the    right    to        shelter         in   severe       weather,    must   be

dismissed. 16

              2.     Plaintiffs  Have Not  Sufficiently Pleaded a
                     Violation of the Right to Shelter in Severe
                     Weather

       The Hunters allege that the District failed to place them

in a       shelter   that       reasonably accommodated A. H. 's                      disabilities

during severe weather conditions.                            Compl.    ~    140 (h)   (citing D.C.

Code   §   4-754.11(5); see also id.                    ~~   38, 138        (alleging that, when



16
   Because the Court dismisses these claims, it need not address
the District's argument that these claims should also be
dismissed because it is not a "provider" under the HSRA. Mot. at
21-23.
                                               -56-
the        Hunters       requested          shelter,      temperatures         were           below     32

degrees Fahrenheit);                 D.C.    Code   §    4-751.01(35)         (defining         "severe

weather conditions"                 to include when the temperature falls below

32 degrees Fahrenheit) .

           The    Hunters      do    not    dispute      that     they   were    provided with

shelter          during    severe      weather,         but   they    argue     that      they        were

entitled to shelter that complied with the standards set                                          forth

in Section 21 and Section 22. Opp'n at 30. The District responds

that       its     obligation to provide                shelter      in severe weather does

not extend to the provisions of the Continuum of Care in Section

21. Mot. at 23            (citing Baltimore, 10 A.3d at 1150-51).

           Section 21 states that providers shall                        "[p] rovide services

free from discrimination on the basis of .                               . disability," D.C.

Code        §    4-754-21(10),       and      "[provide        reasonable       modifications,"

Id.    §    4-754-21(11). However,               Section 21 is the same section that

the District of Columbia Court of Appeals analyzed in Baltimore

and    found        to    be   a    list    of   standards,          rather    than       a    list     of

rights          to which an individual was entitled.                      Baltimore,           10 A.3d

at    1151.       Citing both Section 21                 and Section 22,         the Baltimore

court determined that                 the word      "standards"          suggested            "norms or

what is acceptable or desirable, not a statutory entitlement."

           The    Baltimore        court    concluded         that   there    was     a       statutory

entitlement to             "shelter in severe or frigid weather,"                             id.,     but
                                                  -57-
it did not identify the contours of that right because it found

that the plaintiffs in that case had failed to allege a denial

of shelter during severe weather conditions.                                        Id.       (noting that

the declarations did not                       reveal       "any specific complaint about

the denial of other shelter during severe weather conditions").

Thus, despite the fact that plaintiffs in that case argued they

were     entitled          to     a   particular           shelter          during       severe    weather

conditions, the court found that the fact that they had received

some shelter was dispositive of their claim.

        Similarly,          Plaintiffs in this                   case have          failed to allege

that they were not provided with shelter during severe weather.

Therefore,          although          there     is     a    private          right       of    action   for

individuals to enforce their right to shelter in severe weather,

Plaintiffs have failed to sufficiently allege a denial of that

right.

        Plaintiffs insist that mere shelter is insufficient - there

must be some substantive content to the right to ensure that the

shelter is          "appropriate"              or the       right would be                "meaningless."

Opp'n    at        30-31        (citing    D.C.       Code       §    4-753.01(c) (1)).           Although

Plaintiffs          are     correct        that       there          must    be     some       substantive

content       to    the     right,        it    does       not       follow       that    such    a   right

encompasses all of the "standards" set out in Section 21 of the

HSRA. As the District correctly points out, this would mean that
                                                     -58-
Plaintiffs would have a statutory entitlement to all services in

the Continuum of Care for emergency shelters,                               but no statutory

entitlement to services whatsoever in regular shelters.

        Given        the    clear    language        of    Baltimore,        this       Court     must

conclude that,             as a legal matter,              individuals are not entitled

to all of the provisions listed in Section 21 as part of their

right     to    shelter        in   severe     weather.        Because       the       District     of

Columbia Court of Appeals has held that the only private right

of action under the HSRA is a right to severe weather shelter,

and Plaintiffs have failed to allege a violation of that right,

their claim must be dismissed.

                3.         Exhaustion of Administrative Remedies

        In     the    alternative,           COH    argues     that     Plaintiffs'             claims

under the HSRA must be dismissed for failure to exhaust their

administrative             remedies.     It    argues        that    Plaintiffs          failed     to

"exercise their appeal rights under the HSRA relative to their

request        for    respite       care,"    and,        hence,    Plaintiffs          "failed     to

comply        with     the     mechanism       for        relief     provided          for   by    the

HSRA [.]" COH Mot. at 18-19.

        The     statutory       language       of     the     HSRA    does     not       require     a

client to appeal a provider's decision. D.C.                            Code       §    4-754.41(b)

(stating that "[a] client or client representative may request a

fair    hearing")            (emphasis   added) .         Rather,     the     HSRA       imposes     a
                                               -59-
requirement         on    the    Office    of    Administrative       Hearings        ( "OAH") ,

stating that OAH "shall grant a                        fair hearing to any client or

client representative who wishes to appeal a decision                                    . and

who     requests       such a      hearing,      orally or       in writing,        within    90

days    of    receiving written notice of                  the   adverse     action."       D.C.

Code     §   4-754.41 (a)       (emphasis       added).    Thus,    the     Court    will    not

conclude        that      Plaintiffs'          HSRA     claims     should    be     dismissed

because they failed to exhaust their administrative remedies.

               4.        Summary

        Plaintiffs        have     failed       to     sufficiently    allege       facts     to

support       its    claim       that    its     right    to     shelter     during     severe

weather was violated, the only claim under the HSRA for which it

has a private right of action.

        E.     Count VI: Plaintiffs Have Not Sufficiently Alleged a
               Negligence Claim Against the District of Columbia 17

        The elements of a               cause of action for negligence are:                   "a

duty of care owed by the defendant to the plaintiff, a breach of

that duty by the defendant,                 and damage to the interests of the

plaintiff,      proximately caused by the breach." Woods v.                          Dist. of

Columbia, 63 A.3d 551, 553 (D.C. 2013).




17
   COH does not argue that the negligence claims against it
should be dismissed. See Answer to Counts VI and VII [Dkt. No.
78] .
                                                -60-
        In     Count           VI,       Plaintiffs               allege           that        the    District

negligently             breached            duties        imposed            upon        it     by    the       DoJ

Settlement             and    th e    HSRA .       Comp l .       fl
                                                                   11   144. 18    In     the    D1' str1' ct    of

Columbia,          a    suit against           the District alleging negligence will

fail    as     a       matter    of     law       absent      a         "special        duty"    or    "special

relationship"                between        the     District             and      the     plaintiff. 19         Id.

(quoting Warren,               444 A.2d at 3,              4);          see also Klahr v.             Dist.      of

Columbia,          576 A.2d 718,             719    (D.C.     1990)            ("Under the public duty

doctrine,          a    person        seeking        to    hold          the      District       of    Columbia

liable       for       negligence must              allege         and prove            that    the District

owed     a    special          duty      to       the     injured          party,        greater       than      or

different from any duty which it owed to the general public.").

        "The       threshold          for     establishing a                special        relationship          is

very high." Jefferies v. Dist. of Columbia,                                        917 F.       Supp.    2d 10,

33     (D.D.C.         2013)         (internal       quotations              and    citation          omitted).

18
    Plaintiffs also allege that the District is vicariously liable
for the negligence of its contractors and agents in breaching
contractual    duties.  Id.  ~ 147.  However,  this  claim cannot
survive because "the mere negligent breach of a contract
is not enough to sustain an action sounding in tort." Curry v.
Bank of Am. Home Loans Servicing, 802 F. Supp. 2d 105, 109
 (D.D.C. 2011) (quoting Towers Tenant Ass'n, Inc. v. Towers Ltd.
Partnership, 563 F. Supp. 566, 570 (D.D.C. 1983)). The District
cannot therefore be held vicariously liable for its contractors'
negligent breach of contract.
19
    "The terms 'special relationship' and 'special duty' may be
used interchangeably," because "'a special relationship
imposes a special legal duty."' Powell, 602 A.2d at 1127 n.4
 (quoting Warren v. Dist. of Columbia, 444 A.2d 1, 3 (D.C. 1981)
 (en bane)) .
                                -61-
"If,    based on reading the Complaint,                            the public duty doctrine

applies,        the    Court           may appropriately dismiss                    the    tort    claims

under 12 (b) (6)        for failing to state a claim.                        11
                                                                                   Jefferies,      917 F.

Supp. 2d at 32 (D.D.C. 2013)                   (citing Warren, 444 A.2d at 1).

        There     are       two        exceptions        to    the    public            duty   doctrine.

Jefferies,       917 F. Supp. 2d at 33; Snowder v. Dist. of Columbia,

949 A.2d 590,           603-04          (D.C. 2008). First, a plaintiff can allege

and     prove     two       things:        "((1)     a     direct     or          continuing      contact

between     [the plaintiff]                and a governmental agency or official,

and (2)    a justifiable reliance on the part of                                   [the plaintiff] .       11




Jefferies,       917     F.    Supp.       2d at 33           (quoting Klahr,              576 A.2d at

720).    Second,        a plaintiff can identify a                      "specific statute or

regulation        that        prescribes           'mandatory         acts         clearly        for   the

protection        of    a     particular           class      of   persons          rather     than     the

public as a whole.'               11
                                        Jefferies,       917 F.      Supp.        2d at 34        (quoting

Turner v. Dist. of Columbia, 532 A.2d 662, 667                                     (D.C. 1987)). The

Court will refer to this as the second exception to the public

duty doctrine.

        Thus,     for       Plaintiffs'        negligence            claim         to    survive,       they

must sufficiently allege facts to support a conclusion that the

claim falls under one of the two exceptions to the public duty

doctrine.



                                                   -62-
                 1.      First Exception: Contact and Justifiable Reliance

         Plaintiffs argue that they have alleged facts sufficient to

support the first exception to the public duty doctrine: namely,

that      they        have    sufficiently       alleged       "direct            or        continuing

contact"     between          themselves       and    the   District         of       Columbia     and

"justifiable reliance." Jefferies, 917 F. Supp. 2d at 33.

         To sufficiently allege "contact," Plaintiffs must allege a

"direct     transaction with             the    party       injured or        an arms-length

relationship in which the city's agent is dealing directly,                                         in

some     form,        with   the person injured."             Id.    (citing Powell,               602

A.2d at 1130). Plaintiffs argue that "the District,                                     through its

agent contractors, maintained direct and continuing contact with

the Hunter family from the moment Mr.                         Hunter sought shelter."

Opp'n at 33. Mr. Hunter's first application for housing, as well

as his multiple requests for accommodations,                            all appear to be

"direct     and        personal       transaction[s]"        that    satisfy            this    prong

under District of Columbia precedent.                        Powell,     602 A. 2d at 1131

(finding that application and payment of fee to Bureau of Motor

Vehicle     Services          satisfied     "contact"        prong) ;        see       also     Compl.

~   37    (alleging          Hunter    applied       for    placement         in        a    homeless

shelter at the District's central intake office);                                 ~    41    (alleging

certain     statements           made     by    Center       staff      to        Hunter) ;       ~ 78




                                               -63-
 (alleging        conversation between Hunter and program director at

Girard Street Apartments) .

         The District cites Powell for the proposition that "even a

series of contacts over a period of time is not enough absent

some      showing       that    the    agency assumed a           greater duty to             that

person than the duty owed to the public at large." Reply at 16

n.4      (citing Powell,         602 A.2d at 1130). However, the District of

Columbia         Court     of   Appeals     has     clarified          that    the    burden    of

showing      a     "greater        duty"    than     one    owed        to    the    public     is

satisfied         by     also    requiring      proof      of     justifiable         reliance.

Powell,     602 A.2d at 1131; Snowder,                949 A.2d at 604 n.12                  (noting

that the two-part inquiry "takes this greater duty factor into

account      by    requiring          justifiable    reliance") .            Thus,   Plaintiffs

have     sufficiently alleged              "contact"       with    the       District      through

its agents. 20

         To show "justifiable reliance," Plaintiffs must allege that

the      District         has     "specifically         undertaken            to     protect      a

particular individual and the individual has specifically relied

upon the         undertaking."         Morgan v.     Dist.        of    Columbia,         468 A. 2d

13 06,     1315        (D.C.    1983) .    It   requires        "particular          or    special

reliance,"        Powell,       602 A.2d at 1131 n.11,                 on some "affirmative

20
  As discussed above, see supra Sec. III.A.4.b, the Hunters have
sufficiently alleged that the District's contractors are its
"agents" to proceed on that theory at this time.
                               -64-
act[]"     that     uactually        and     directly         worsened       the        plaintiff's

condition,"       Woods,        63   A.3d     at     554      (internal          quotations         and

citation omitted) .

      Plaintiffs         argue       that     they       justifiably             relied       on    the

District's uaffirmative obligation" as set forth in Paragraph 24

of its Settlement Agreement with the DoJ. Opp'n at 34. However,

the   Settlement          Agreement          specifically            states           that     it    is

uenforceable only by the parties" and that uno person or entity

may assert        any    claim or right             as   a        beneficiary or protected

class" under the Agreement. Settlement Agreement                                  ~   37     [Dkt. No.

79-1].   Whatever the           scope of       the District's               duties under            the

Settlement Agreement, it is clear that signing the Agreement was

not an uaffirmative act[]" that uactually and directly worsened

the   plaintiff's         condition."        Woods,          63    A.3d     at     554       (internal

quotations and citation omitted) .

      Plaintiffs         identify      no    other       portion       of        their       Complaint

that alleges an uaffirmatively negligent act" as compared to a

ufailure     to     act."        Snowder,          949     A. 2d      at     604.          Therefore,

Plaintiffs        have     failed       to     sufficiently                plead         justifiable

reliance,    and,       thus,    have not satisfied the first exception to

the public duty doctrine. See Woods, 63 A.3d at 554                                    (noting that

District of Columbia Court of Appeals uhas adhered to a strict

interpretation of the special relationship test,                                      including the
                                             -65-
justifiable         reliance          prong")      (quoting        Taylor       v.     Dist.     of

Columbia, 776 A.2d 1208, 1218 (D.C. 2001)).

              2.      Second Exception: Statute

        In    the     alternative,            Plaintiffs         argue     that       they     have

satisfied      the       second       exception     to     the    public       duty       doctrine,

because       the     HSRA       is     a    specific      statute        that       "prescribes

mandatory acts clearly for the protection of a particular class

of persons rather than the public as a whole." Jefferies, 917 F.

Supp.    2d at      34    (quoting Turner,              532 A. 2d at      667);       see Compl.

~~   144-46    (alleging         that       HSRA   imposes       particular          duties    upon

Defendants) .

        The District of Columbia Court of Appeals stated in Turner

that "if a state agency is required by statute or regulation to

take a particular action for the benefit for a particular class

and fails to do so,              or negligently does so,                 and the plaintiffs

justifiably rely to their detriment on the agency's duty to act,

a cause of action in negligence will lie against the state or

its agency." Turner, 532 A.2d at 672.

        In   Turner,       the        District     of     Columbia       Court       of     Appeals

concluded      that      the     Child Abuse           Prevention        Act    imposes       "upon

certain public           officials          specific     duties     and    responsibilities

which are intended to protect a narrowly defined and otherwise

helpless class of persons:                   abused and neglected children."                    Id.
                                                -66-
at    668.   The Child Abuse Prevention Act                        specifies that District

officials act            in certain ways            to protect         a    special      class,     and

when officials breach those duties,                          "that statutorily protected

class    suffers         in   a    way uniquely different                  from    the    public     at

large." Id.

        Plaintiffs argue                that    the HSRA imposes            certain duties and

responsibilities on the District                          in order to protect              "disabled

individuals seeking shelter." Opp'n at 34                              (citing D.C. Code § 4-

754.52 (a) (3),          (b)- (d)).       However,    the District of Columbia Court

of Appeals has concluded that the HSRA does not create legally

enforceable obligations, but merely creates a list of standards.

See    supra      Sec.     III.D.l.         (discussing Baltimore,                10    A.3d     1141).

Therefore,        the HSRA is not a statute that "prescribes mandatory

acts clearly for the protection of a particular class of persons

rather than the public as a whole."                          Jefferies,         917 F.     Supp.     2d

at 34    (quoting Turner, 532 A.2d at 667).

        The one mandatory act that is prescribed by the HSRA is to

provide      shelter          in       severe     weather.    See       supra      Sec.        III.D.2.

Plaintiffs        failed          to    allege     that    they    were,      in       fact,     denied

shelter      in     severe             weather.     Id.    Thus,       Plaintiffs         have      not

sufficiently alleged that                      the District was            required to         "take a

particular        action       for       the    benefit     for    a   particular         class     and

fail [ed]    to do so [.]" Turner,                 532 A. 2d at 672           (emphasis added) .

                                                   -67-
Consequently,           even this portion of the HSRA cannot provide the

basis for the second exception to the public duty doctrine.

                3.      SUilllnary

        Plaintiffs        have       failed   to     sufficiently            allege         facts     to

support       its negligence           claim against            the District,           because it

has not demonstrated that either of the exceptions to the public

duty doctrine apply.

        F.      Count VII:       Plaintiffs Have Not Sufficiently Alleged a
                Negligence       Per Se Claim Against     the District of
                Colwnbia

        Plaintiffs also allege that Defendants "were negligent per

se   in failing          to meet       their duties and obligations under the

ADA, FHA, Rehabilitation Act, DCHRA, and HSRA." Compl.                                  ~   150.

        However,        negligence      per    se     is    not     in       and   of       itself     a

separate        legal    claim          rather,      it    permits       a    plaintiff         under

"certain circumstances and under specified conditions," to "rely

on a statute or regulation as proof of the applicable standard

of   care."      McNeil       Pharm.    v.    Hawkins,      686     A. 2d      567,     578        (D.C.

1996)        (citation omitted)          If the plaintiff can prove that                            the

defendant violated such a statute or regulation, it "renders the

defendant negligent              as a matter of law                            so long as            the

violation       was     the    proximate       cause       of     the    injuries,           and    the

alleged injuries were of the type which the statute was designed

to prevent." Id.           (internal quotations and citation omitted).
                                              -68-
        "The decision to adopt from a statute a standard of care to

be applied in determining common law negligence"                                is a       judicial

decision for the court to make.                   Id.       at 579       (internal quotations

and citation omitted) . The Court must decide whether the statute

or     regulation       "promote [s]      public        safety      and     [was]    enacted       to

protect       persons    in the plaintiff's position or                       to prevent          the

type of accident           that occurred."            Id.     (internal       quotation marks

and citation omitted) .

        The     District     argues       that        the     "gravamen       of     Plaintiffs'

claims     is    discrimination,"         and that           the    statutes       they rely on

are     intended to combat discrimination,                        not    to prevent physical

harm. Mot. at 26-27. Plaintiffs identify no precedent supporting

their     argument       that     anti-discrimination               statutes        such    as    the

ADA,    the     FHA,    the DCHRA,       and the Rehabilitation Act                    should be

considered statutes that "promote public safety."

        Although neither party identifies cases evaluating whether

negligence per se should be applied to the FHA,                                 the DCHRA,         or

the      Rehabilitation           Act,        cases         addressing        the      ADA        are

instructive.       Multiple       courts have           found that         the ADA is not a

public     safety       statute    for        purposes       of    the    negligence        per    se

doctrine.       See,    e.g.,   McCree v.         Se.       Pa.    Transp.    Auth.,        No.   07-

4908,     2009     WL     166660,        at     *12      (E.D.      Pa.      Jan.     22,     2009)

(" [V] iolation of an ADA regulation may not be used as evidence

                                               -69-
of     negligence     per    se       in    a    personal       injury   action        like    this

one."); White v. NCL Am.,                   Inc.,    No.    05-22030,     2006 WL 1042548,

at     *5    (S.D.   Fla.    Mar.          8,    2006)     ("Because     the     ADA    was     not

designed       to    protect          those       with     disabilities        from     personal

injuries,       Plaintiff        is    unable       to     state    a    claim    for    per     se

negligence.");        James v.         Peter Pan Transit Mgmt.,                Inc.,     No.    97-

747, 1999 WL 735173, at *9                      (E.D.N.C. Jan. 20, 1999)             (concluding

that       ADA was   "enacted          to       'provide    a   clear    and     comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities,' and, thus, it was "unlikely that

the North Carolina courts would find that the ADA is a safety

statute or that violation of the ADA constitutes negligence per

se")       (quoting 42 U.S.C.          §    12101(b)); Dalgliesh v. Theatre Mgmt.

Grp., Inc., No. 96- 3985, 1999 WL 638127, at *1 (D.C. Super. May

28, 1999)       ("Obviously, it would have been error if the court had

instructed the jury that evidence of the ADA and the applicable

C. F. R.    violations constituted negligence per se,                          since the Act

was        promulgated      to        prevent        discrimination,           not      physical

injury.") .

        Plaintiffs argue that accommodating the needs of disabled

individuals does have a                 "public safety"            rationale.     However,       as

the court observed in White,                     "[w]hile protection from injury for

the disabled is no doubt a fortunate by-product of the ADA,                                      it
                                                 -70-
is clear that the statute was not designed with that purpose in

mind[.]"      White,     2006 WL 1042548,         at    *5.    The Court agrees and

concludes        that   the    same   rationale prevents         the       Rehabilitation

Act,    the    FHA,     and    the DCHRA from       serving      as    the      basis    of    a

negligence per se claim as well.

        Plaintiffs      argue     that    the   HSRA subsection mandating                 that

the District provide shelter during severe weather is a "public

safety"    statute.      They may be correct,            but,   as discussed above,

see supra Sec. III.D.2, Plaintiffs failed to plead a claim under

that     subsection.          Moreover,    in   order     to    adopt       a    particular

standard of care, the statute must be "enacted to                                  . prevent

the type of accident that occurred[.]" Sibert-Dean v. Washington

Metro. Area Transit Auth., 721 F.3d 699, 702-03                       (D.C. Cir. 2013)

(quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 557

(D.C.     Cir.     1993)).      The   relevant     subsection         of     the      HSRA    is

directed      at      protecting      individuals       from    exposure         to     severe

weather.      There is no allegation that the injuries suffered by

the     Hunters       occurred     because      they    were     exposed         to     severe

weather.      Therefore,       even if that section of the HSRA "promotes

public safety,"         it still does not support a negligence per se

claim in this case.




                                           -71-
        In sum,      Plaintiffs have failed to identify a                           statute that

supports its negligence per se claim against the District,                                           and

this claim must be dismissed.

IV.     CONCLUSION

        For the foregoing reasons,              the District's Motion to Dismiss

shall    be   granted       in   part    as     to        Counts     V,    VI,     and    VII,       the

portion of     Count       II    brought      under        42   U.S.C.     §     3604 (f) (1),       and

the     portion       of    Count       IV     brought          under       D.C.         Code    §    2-

1402.21 (d) ( 1) ,    and    denied     in part            as   to   all       other     arguments;

Defendant COR's Motion to Dismiss shall be granted in part as to

Count    V,   the    portion      of    Count        II    brought        under     42    U.S.C.       §

3604(f) (1),      and the portion of Count IV brought under D.C.                                 Code

§   2-1402.21(d) (1), and denied in part as to all other arguments.




August 18, 2014                                       Gff:iaer I~
                                                      United States District Judge


Copies to: attorneys on record via ECF




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