Condo hoist has tenant, association in protracted battle
An elderly man believes he is entitled to “reasonable accommodations” within a common space in his condo, but the condo association says there is a process to follow. It all has to do with a hoist the man installed to assist him and his wife to get groceries to his second floor residence.
Sea Watch Condominium resident Victor Fong installed the electrical hoist in the stairwell near his unit in the summer of 2011. In the two years since, he has been engaged in a verbal tug-of-war with the Sea Watch Condo Association Board of Directors.
Fong believes the association is blocking his right to use the hoist by making him jump through a series of hoops.
“They can’t refuse without making themselves vulnerable,” said Fong.
He claims the association is violating the Fair Housing Act and Americans with Disabilities Act by failing to provide reasonable accommodations to him and his wife, who both suffer from physical challenges stemming from previous health problems.
Charlie McNamara, treasurer of the association and president at the time the issue began, said that is not the case. The association would allow Fong to install the hoist if he followed a set of guidelines and has it installed by a licensed contractor following city building code.
“We aren’t a bunch of young people ignoring everyone’s needs,” said McNamara, who first noticed the hoist in July 2011 and had some concerns.
Fong installed the hoist in the common, interior stairwell, without informing anyone, to bring groceries up three flights of stairs from the Fong’s garage to the entrance to their unit.
“You could come back from the supermarket, drive into the garage and hoist your groceries up the stairs,” said Fong, who is a retired engineer.
McNamara was concerned because Fong had not requested to install the device in a common area and wanted to discuss safety concerns. McNamara recalls hearing that glass bottles had fallen off of the hoist and shattered at the base of the stairs. The hoist had also fallen out of the ceiling before.
“It’s a common area; you can’t just take it over,” said McNamara. “Mr. Fong was once president of the association; he is aware of these rules and regulations.”
The issue of the hoist was brought up at the Aug. 22, 2011 meeting of the board and condo owners. The minutes of the meeting show that the board approved the installation of a hoist, something McNamara says they had a right to deny, provided that Fong agree to set guidelines.
“They would let me install it … if I stood on my head first,” said Fong.
The guidelines would require Fong to have the hoist installed by a licensed contractor following city building codes, would allow the resident of Unit 8 (the neighboring unit) to request the hoist’s removal, would make Fong financially responsibile for the hoist, allow the hoist to be used between 10 a.m. and 8 p.m., would allow the Board to request removal, and if Fong moved for any reason, he would have to remove the hoist. Also, if electricity bills went up dramatically, Fong would need to cover the charges for the hoist’s operation.
After months of back and forth on the guidelines, a building inspector was brought in and reported that the hoist was not up to code in January 2012. The board met again on March 11, 2012 to discuss the issue because Fong had yet to agree to the guidelines and have the device brought up to code.
In the March 2012 meeting minutes, it is written that Fong felt the board was “personally attacking him.”
“They are continually obstructing the use of a hoist,” said Fong in a recent interview. “And actually they are hostile about it, covertly hostile.”
The meeting minutes also show that the meeting ended with McNamara informing Fong that he had 15 days to remove the hoist or he would be charged $100 a day and a lien would be placed on the unit until it was.
While McNamara says he did inform Fong of this, the fine and lien never came to fruition. According to McNamara, condo law says that if an owner is in violation of rules and regulations, a fine of up to $100 can be issued but Fong was never actually charged.
“The fine was never actually implemented,” said McNamara. “There has never been financial cost.”
Fong did remove the hoist, but he did not stop fighting for what he calls “reasonable accommodations.”
“They say I can have the hoist, but at the same time they’ll put up all these obstacles about having it,” said Fong. “They don’t really want it.”
So, in summer 2012, Fong went to the Department of Housing and Urban Development (HUD) in Boston to report what he believes to be a violation of Fair Housing and ADA regulations. HUD sent the case to the Rhode Island Commission on Human Rights.
“HUD just didn’t want to hear it. The objective of the Commission is not the same as HUD. They want to negotiate a settlement and get the case out of the way. It’s really kind of a joke,” said Fong.
McNamara had kept a detailed record of all that had transpired between himself and Fong and was able to present the complete record, as he sees it, to the commission.
The settlement from the commission said Fong could install the hoist if a professional installed it according to code.
“Much of the settlement matched the original guidelines from the association,” said McNamara.
Fong still refused to agree to the settlement and the commission dismissed the case in July 2012.
A year later, the tug-of-war continued between Fong and the board.
“He is still active in this. All we can do is respond to what he is doing,” said McNamara. “We agreed to it all along. We don’t have a reason to turn around and say no now.”
While McNamara says he doesn’t understand why Fong is refusing the guidelines, Fong says McNamara is “a master of distortion.”
Fong says he tried to go to City Hall to issue a permit for the hoist, as per the board’s terms, but the city asked for a letter of consent for the hoist from the board first.
“The board refused to give me a letter of consent. They wanted approval [from the city] first,” said Fong. “It became a chicken and egg situation.”
Fong says this “distortion of the truth” is part of the board’s strategy to obstruct because they do not want him to have the hoist.
While McNamara has maintained a record of the hoist battle, current board president Tim McCarthy has inherited the conflict as well.
McCarthy says there was no “chicken and egg” situation because the board wanted to see the plans for the hoist from a licensed contractor before issuing the letter of consent, not the permit from the city.
“In order to issue a letter of consent, we wanted details on what [Fong] wanted to do,” said McCarthy, which included the name and license number of the contractor who would do the job.
McCarthy and McNamara believed this issue was over in February 2013 when Fong formally withdrew his request for the hoist and the letter of consent during a February meeting.
“We explained that he had the right but that didn’t mean he could install it any way he wanted,” said McCarthy. “Similar to the right to drive a car, one must study for a driver’s test, obtain a driver’s license and follow the rules of the road.”
McCarthy says Fong withdrew the request and accepted the minutes of the meeting without edit. He believed the issue was resolved until the Beacon contacted him for this story.
McCarthy believes that Fong is fighting the guidelines not for ADA reasons, but financial ones.
“He does not want to pay for the contractor. He would be financially responsible for the upkeep,” says McCarthy when asked why he thinks the fight has lasted so long. “We would be happy to give him a letter of consent when he provides plans stamped by a professional.”
And even after two years of back and forth, Fong is still not ready to give up the fight.
“The only way I can get anything done is HUD or the commission would have to bring it to the state or federal Attorney General to prosecute. If they don’t, I would need to prosecute this myself,” said Fong, who adds that he doesn’t have the financial capabilities to do so.
So it seems the battle will continue. The board says they will still allow Fong to install his hoist if he follows the guidelines they presented. Fong still believes he is the victim of “an abusive condo association” and deserves the reasonable accommodation of a hoist.