## Facts

- Cherry Oaks Retirement Community (Cherry Oaks) operated a licensed personal-care boarding home for seniors who needed some assistance but not full-time nursing care.
- Cherry Oaks was subject to state and local health and safety requirements, including a Denver regulation requiring that residents be able to move freely or transfer from a wheelchair or walker without assistance.
- Cherry Oaks maintained a dining-room policy requiring residents using wheelchairs or walkers to transfer to ordinary dining chairs; mobility devices were removed from the dining room.
- Miriam and Hyman Weinstein moved into Cherry Oaks. At move-in, Mr. Weinstein used a wheelchair but could transfer from it to a chair without assistance and thus could follow the transfer policy.
- Within a few months, Mr. Weinstein’s medical condition worsened, and transferring became painful.
- Cherry Oaks briefly allowed Mr. Weinstein to eat in the communal dining room while seated in his wheelchair.
- Cherry Oaks then discontinued that exception and instead provided staff (including offering two aides at no cost) to assist Mr. Weinstein with the transfer to a dining chair.
- Cherry Oaks stated that allowing Mr. Weinstein to eat in his wheelchair “looked bad,” would lead other residents to request similar treatment, and violated the fire code and state and local regulations.
- Cherry Oaks did not tell the Weinsteins that an inability to independently transfer from a wheelchair would make a resident ineligible to live at the facility.
- The Weinsteins began taking their meals in their apartment rather than using the communal dining room.
- When the lease ended, the Weinsteins left Cherry Oaks and filed a complaint with the Colorado Civil Rights Commission alleging discriminatory and unfair housing practices based on disability under the Colorado Fair Housing Act (CFHA).
- After Mr. Weinstein died, his estate joined the complaint.
- An Administrative Law Judge (ALJ) ruled for the Weinsteins, finding the dining-room policy unlawful under both discriminatory intent and discriminatory impact theories; the Commission adopted the ALJ’s findings and issued a final order against Cherry Oaks.
- Cherry Oaks appealed the Commission’s order to the Colorado Court of Appeals.

## Issues

1. Whether substantial evidence supported the Commission’s determination that Cherry Oaks’ dining-room transfer policy and refusal to allow Mr. Weinstein to dine in his wheelchair constituted disability-based discriminatory and unfair housing practices under the CFHA.
2. Whether the Commission properly found discriminatory intent (disparate treatment), including that Cherry Oaks’ stated reasons (fire code, regulations, aesthetics, and operational concerns) were not credible or were pretext for discrimination.
3. Whether the Commission properly found discriminatory effect (disparate impact), and whether Cherry Oaks carried its burden to show a legitimate justification for the policy sufficient to avoid CFHA liability.

## Decision

- The Colorado Court of Appeals affirmed the Commission’s final order.
- The court held that the Commission’s findings were supported by substantial evidence and would not be disturbed on review.
- The court upheld the Commission’s determination that Cherry Oaks’ policy and its refusal to permit wheelchair dining in the communal dining room violated the CFHA.
- The court accepted the Commission’s conclusion that the asserted safety and regulatory justifications did not require a ban on wheelchairs in the dining room and did not excuse the discriminatory practice.

## Legal Principles

- The CFHA prohibits disability-based discrimination in the terms, conditions, and privileges of rental housing and in the use of services and facilities connected with the dwelling, including common areas.
- CFHA provisions are interpreted consistently with federal fair-housing authority because the CFHA is substantially similar to the federal Fair Housing Amendments Act.
- Disparate treatment may be proven by circumstantial evidence using burden shifting: a complainant may establish a prima facie case, the housing provider must articulate a legitimate nondiscriminatory reason, and the complainant may show that the reason is not credible or is pretext.
- Disparate impact liability may be established where a policy falls more harshly on persons with disabilities and is not justified by a legitimate, substantial interest, or where less discriminatory alternatives exist.
- Refusal to make a reasonable change in rules or practices, when necessary to allow a person with a disability equal opportunity to use and enjoy a dwelling and related facilities, constitutes discrimination under the CFHA.
- On appellate review of an administrative agency decision, the court defers to the agency’s credibility determinations and fact findings and will affirm if supported by substantial evidence.

## Conclusion

The Colorado Court of Appeals affirmed the Colorado Civil Rights Commission’s order against Cherry Oaks, concluding that substantial evidence supported findings that Cherry Oaks’ dining-room transfer rule and its refusal to allow Mr. Weinstein to eat in his wheelchair in the communal dining room constituted disability-based discriminatory and unfair housing practices under the Colorado Fair Housing Act, and that the facility’s claimed fire-safety, regulatory, and operational explanations did not justify the practice.


Weinstein v. Cherry Oaks Retirement Community, 917 P.2d 336 (1996)