Judge Denies Motion to Dismiss in Lambda Legal's Case of Evicted HIV-Positive Retired Minister

(Little Rock, Ark., August 10, 2009) — A U.S. District Court judge today denied a motion by Fox Ridge, a North Little Rock assisted living facility, to dismiss a lawsuit brought by Lambda Legal on behalf of Robert Franke, a retired minister with HIV.

The ruling by Judge Garnett Thomas Eisele of the U.S. District Court for the Eastern District of Arkansas clears the way for the case to proceed.

"Fox Ridge and its attorneys have shown an appalling level of ignorance regarding HIV, the limited ways the HIV virus can be transmitted and the requirements of the antidiscrimination laws," said Scott Schoettes, HIV Project staff attorney for Lambda Legal. "Despite the defendant’s unsupported claims to the contrary, Dr. Franke poses no threat either to staff or residents at Fox Ridge. Fox Ridge not only demonstrated a lack of knowledge about HIV that’s inexcusable in this day and age – they also showed a lack of common decency when they evicted him. We’re pleased that the court has denied the motion to dismiss – Dr. Franke and his daughter deserve their day in court."

The lawsuit was filed on behalf of 75-year-old Reverend Dr. Robert Franke, a retired university provost and Unitarian-Universalist minister, and his daughter, Sara Franke Bowling. Dr. Franke relocated to Little Rock to be closer to his daughter and moved in to the facility – Fox Ridge – after fulfilling residency requirements that included submission of medical evaluation forms from a local physician. The next day, however – after realizing Dr. Franke is HIV-positive – Fox Ridge officials abruptly ejected Dr. Franke from the facility. A Fox Ridge staffer told Bowling her father’s personal belongings could remain, but that the “body” had to be out by the end of the day.

Dr. Franke requires no special medical attention beyond daily medication and regular check-ups with a physician, and Fox Ridge is licensed by the state to provide Dr. Franke with the kind of care he and his daughter were seeking for him.

In their July 9 motion to dismiss, Fox Ridge attorneys claimed that Arkansas law prevented the facility from accepting Franke as a resident. The Court, however, agreed with the plaintiffs that it could not decide as a matter of law whether Dr. Franke’s HIV status posed a direct threat to other residents or staff based on Fox Ridge’s motion to dismiss and denied the motion.

Franke and Bowling are seeking damages under the Fair Housing Act, the Arkansas Civil Rights Act and the Arkansas Fair Housing Act, as well as an injunction, under those laws and the Americans with Disabilities Act, preventing Fox Ridge from continuing to engage in this kind of misconduct.

Scott Schoettes, HIV Project Staff Attorney, and Kenneth Upton, Supervising Senior Staff Attorney, are handling the case for Lambda Legal. They are joined by co-counsel Gary L. Sullivan of the Tripcony Law Firm in Little Rock, Arkansas.

The case is Franke v. Parkstone Living Center, Inc.

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