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Court Rules in Favor of Association After Board Requests More Information Regarding Need for Service Animal

U.S. District Court, Northern District of Florida
Case No.: 3:07-cv-97-RV/EMT

On March 12, 2009 the United States District Court for the Northern District of Florida entered Summary Judgment in favor of a condominium association sued for purportedly violating the Fair Housing Acts. Summary Judgment was also granted in favor of the association on a claim of Intentional Infliction of Emotional Distress.

The issue? A request to keep a pet, oops, not a pet, but a certified service animal, on the condominium property.

Shoreline Towers Phase I had a long-standing “no pet” policy. Mr. Hawn knew that at the time he purchased his unit in 2004. However, in 2005, he urged the Board to allow owners to keep pets on the property after he adopted a puppy. The Association took no action in response to that plea.

Over a year later, Mr. Hawn requested permission for a reasonable accommodation due to a disability. As noted elsewhere, the Fair Housing laws require community associations to make reasonable accommodations in policies or practices and allow reasonable modifications to the physical property if necessary to afford a disabled person the equal opportunity to use and enjoy the dwelling. Mr. Hawn claimed he was disabled (within the meaning of the law) and his dog ‘Booster’ was a trained, certified service animal. He also provided the Board with two (2) letters, one from a psychologist who indicated Mr. Hawn suffered from severe panic attacks and prescribed a service animal to help him cope with his disability. The other letter was from a chiropractor who said a service animal would assist Mr. Hawn with mobility issues.

Mr. Hawn likewise addressed this issue again with the board at a meeting, describing how important ‘Booster’ was to him.

The Board requested documentation to support Mr. Hawn’s claim. It also asked for the qualifications of the medical providers that supplied the two letters. There was no response.

A few weeks later the Board requested more information specifically about 1.) the nature of the impairments; 2.) how the pet was necessary to overcome the impairments; and 3.) whether there were other corrective measures that would serve the same or functionally equivalent purpose. The request for permission to keep the pet was denied pending receipt of further information.

Instead of providing additional information, Mr. Hawn filed a complaint with the Florida Commission on Human Relations (FCHR). The investigator issued a finding of “Reasonable Cause” to believe a discriminatory act occurred which prompted Mr. Hawn to file a lawsuit in Federal Court for discrimination in violation of both the Federal and Florida Fair Housing Acts. Mr. Hawn also sought damages for Intentional or Reckless Infliction of Emotional Distress and Injunctive Relief.

Someone is entitled to damages, injunctive relief, or both, from a housing provider for discrimination if they show:

1. They are disabled (as defined by the law) & the housing provider knew or should have known of the disability; and
2. An accommodation (or modification) is necessary to afford the disabled person the equal opportunity to use and enjoy the dwelling; and
3. The requested accommodation (or modification) is reasonable; and
4. The housing provider denied or refused to make the requested accommodation.

The Court found that the Board was perfectly well-within its right to question the disability claim, especially since Mr. Hawn obtained the dog a year earlier, lobbied to change the rules without any mention of a disability and failed to provide further information upon request. Once discovery took place, the Association learned that Mr. Hawn only had two appointments each with the psychologist and chiropractor that wrote the initial letters. The Court found that the information initially provided was not sufficient to prove that the Board “knew or should have known” that Mr. Hawn was disabled and therefore failed to show that the Board knew the accommodation was reasonably necessary. The Court stressed the requests for additional information and the temporary nature of denial, concluding that Mr. Hawn could not show the Board wouldn’t make an accommodation if he was able to show the accommodation was necessary to ameliorate the effects of the disability.

Community associations should learn important lessons from this favorable case. First, it is important for all community leaders and members of the management team to be aware of the obligations of housing providers pursuant to Federal, State and local fair housing laws. Second, requests for reasonable accommodations or modifications cannot be ignored and must be addressed in a logical way. Finally, it is important to consult with legal counsel as these are highly charged and sensitive issues.

We will report on any updates or appellate decisions regarding this case. If you haven’t done so already, please consult with your Community Association Attorney about creating fair housing policies and procedures for consideration of requests for accommodations and/or modifications.

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 Community Associations are Entitled to Request More Information When Determining Whether to Grant Animal Accommodation

Community Associations are often confronted with requests to keep animals on the property as a reasonable accommodation pursuant to the various Fair Housing Acts[1]. This issue is frequently addressed in newspaper articles and television as well as national magazines.  As Kevin’s post from March 17th aptly stated:

the owner needs to provide documentation that he/she suffers from a disability or handicap. This needs to come from a licensed medical professional. The physician must state that the disability involves a substantial impairment in one or more of life’s major functions. In addition, the physician should explain how the animal is needed to overcome or deal with the substantial impairment of a life function.

When an owner or resident does not receive the answer they desire from the Board or Management, filing a discrimination claim with the local enforcement agency is usually the next step. Unfortunately, the investigations seems to lean heavily in favor of the complainants and determinations of “reasonable cause” that a discriminatory act occurred naturally upset community leaders, especially in cases when the members of the board followed the advice of counsel and truly believe they have not engaged in any wrongdoing. At that point the board members often “give in” and negotiate for accommodations that are not believed to be warranted under the circumstances (possibly opening the floodgates for additional requests), usually to avoid the expenses associated with challenging the determination.

Some of the consternation expressed by board members (and other community residents) results from the apparent lack of specificity required on the part of the person requesting the accommodation. Websites have sample letters and forms for physicians and other medical providers to fill out for the purpose of enabling patients to request prescription pets. Investigative agencies reportedly have “approved” these forms. While community leaders and other residents complain about how easy it is to have a medical provider write a letter prescribing a pet as a necessary accommodation, boards don’t have many choices available if the letter, or prescription, contains the information required by law. In fact, some of the investigative agencies have issued a finding of “reasonable cause” solely as a result of an Association’s request for more detailed information concerning the major life function impairments and how the animal will lessen the effect of those impairments.

Recently, however, the United States District Court for the Northern District of Florida granted summary judgment in favor of a condominium association that requested more information from someone requesting a pet accommodation. In Hawn v. Shoreline Towers Phase I Condominium Association, Inc., et al, the Court found that the person requesting the accommodation “failed to establish that the board knew the accommodation was necessary” because he did not provide sufficient information about the major life functions that were claimed to be impaired nor did he adequately described how the pet was necessary to overcome those impairments. As this is an important ruling for community associations, I will post a casenote to this blog explaining the facts and the ruling in detail.

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Condominiums and other common interest housing communities have a long history with trying to enforce their use restrictions. These battles often stir much passion. However, rules that ban or limit the size of dogs, cats and other household pets seem to strike an especially sensitive nerve. Many owners love animals and cherish the companionship that a dog or cat can provide. But such owners often find themselves living in an association with these types of "pet" restrictions. Do they need to try and amend the deed restrictions or move to another complex where pets are permitted? Not necessarily. If they suffer from high blood pressure, high cholesterol or depression a pet just may be the right medicine. In addition to the regimen of statins and anti-depressants to treat these ailments, doctors have now apparently discovered a panacea for these and other related illnesses; the emotional support animal.

The dilemma that many directors face is trying to enforce pet restrictions when an owner produces a doctor's note (often written on a prescription pad) telling the Board that he or she needs the pet to help treat the owner's depression or high blood pressure. While the Board must provide reasonable accommodations for an owner who requests assistance in living due to a disability or handicap, the definition of "disability" has become so broad in its interpretation that almost anything can qualify. A disability or handicap is any condition that limits a person's major life activities (e.g. walking, talking, seeing, hearing, and breathing). Courts now routinely agree that mental illness such as depression or bi-polar disorders are disabilities. Similarly, high blood pressure is probably now a disability. If an owner requests a dog or cat to assist them with their particular disability, the Board may have to permit the pet as a reasonable accommodation.

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Economic Stimulus Package Changes COBRA and mini-COBRA Procedures and Rules.

On February 17th, 2009, President Obama signed a $787 billion economic stimulus plan known as the American Recovery & Reinvestment Act of 2009.   Changes to both federal COBRA and state ("mini-COBRA) regulations may require action on the part of employers. The Act includes Federal funds to subsidize sixty-five (65%) percent of COBRA or state continuation (Mini-COBRA) premiums for up to nine months.  Eligibility is limited by income.

Federal COBRA impacts any employer with twenty (20) or more employees.  Many community associations do not have this many employees and therefore are not concerned with the changes.

However, in Florida, entities with less than twenty (20) employees are subject to "mini-COBRA" regulations.  Any employees "involuntarily separated" from employment between Sept. 1, 2008, and Dec. 31, 2009 qualify for the subsidy. Employees who lost their jobs between Sept. 1, 2008, and February 19th, 2009,  but failed to initially elect COBRA because it was unaffordable, have sixty (60) days to elect COBRA and receive the subsidy, however, they will have to pay the full premiums for the coverage period from the date of separation to the date of enactment of the law.

If the employee elected to take COBRA on or after September 1, 2008, they will be eligible to receive the subsidy prospectively for up to the maximum nine-month period.  

Associations with employees are encouraged to confirm that their payroll vendors or COBRA administrators have systems in place to ensure compliance.  Consultation with legal counsel is also recommended.

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A blog reader recently posed a question containing the following statement:

We are a HOA of 8000 parcels, and we do not have Statutory required membership or developer reserves.

Membership (mandatory or voluntary) in an homeowners association (HOA) is not regulated by Statute.  Section 720.301(9), Florida Statutes defines an "homeowners' association" or "association" subject to the requirements of Chapter 720 as:

... a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on a parcel.  The term "homeowners' association" does not include a community development district or other similar special taxing district created pursuant to statute.

In the event the association is considered a "homeowners' association" pursuant to Chapter 720, Florida Statutes and the budget contains reserve accounts (as defined therein), those reserves must be determined, maintained and waived in compliance with the statute.

More information is available about governance of homeowners' associations from Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes.

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Attention Residents in Broward, Palm Beach and Miami-Dade Counties:  

Broward County's Permitting, Licensing and Consumer Protection Division issued a warning to residents not to be misled if they receive a letter from “National Department of Renewable Resources”.  Apparently this organization says it is authorized to obtain compensation for recycling shortfalls. 

This organization claimed that State of Florida passed a law that allows fines to be levied against homeowners who fail to follow the mandatory recycling policies enacted by Broward, Palm Beach and Miami-Dade counties.  Full information about Florida's recycling laws may be obtained from the Florida Department of Environmental Protection.

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As naïve as it sounds, foreclosure is business, not personal. There are some fundamental questions that need to be asked to curb the passion and focus the decisions on the economics of business.  In truth, the Association does not want the foreclosure but rather what results from it, the sale. So we need both the foreclosure and the sale for the Association to be able to get the money it is owed.

Let’s talk a bit about whether the Association should foreclose. Given the past history of property values the foreclosure decision was simple. The difference in the amount of the market value and mortgaged value left significant excess available to settle the assessments from the foreclosure action at the sale. In the current environment of depressed market values, significant portions of the properties in arrears on assessments also have significant mortgages, putting the Association in a disadvantaged position. The disadvantage is lack of equity to foreclose against; making recovery of assessments a bit more complicated and sometimes even fruitless.

The above has to be balanced against the fact that the assessments are the lifeblood of the community to maintain, beautify, and provide the amenities to the members.  All members are required to support the community through the payments of assessments. Non-paying members should not be allowed to draw down the community. Therefore, respect for the paying members must be maintained by utilizing the tools available to enforce payment of delinquent assessments from the non-paying members. 

The normal process of collections requires a demand letter, a notification of intent to lien, the lien letter and the lien itself. Once the lien is recorded a Condo has up to a year to foreclose, while the Home Owners Association has 5 years. This provides for a unique position for the Association to work with the Unit Owner and to consider owner payment plan options before spending more money which it may have difficulty recovering. If this fails then the only recourse left is to file a lawsuit to foreclose the lien and ultimately sell the property.

My next series of posts will go into greater detail regarding payment plans and the actual foreclosure process.

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The total dollar amount of government construction contracts awarded to businesses annually is multi-billions.  Increasingly, government contracts both at the federal and local level are awarded to organizations that reserve a certain percentage of the total award for minority owned businesses.  Now more than ever it pays to be a certified Minority Business Enterprise.

MBE certification is the process by which a business is validated by a certifying agency as being at least 51% owned, managed, operated and controlled by an ethnic minority or a group of minorities.  Most agencies recognize minority group members as U.S. citizens who are African-American, Hispanic-American, Native American, Asian-Pacific American and Asian-Indian American. 

MBE certification at the federal, state and local level grants bidders additional evaluation credit if they use MBEs.  It also allows businesses to be eligible to bid on contracts set aside specifically for minority companies and provides minority companies with positive exposure by getting them into minority business directories and databases used by corporations for referrals.  Furthermore, government agencies and private sector companies may have specific goals for minority owned businesses.  Even if a firm does not intend to do business with government agencies minority certification still provides a means to distinguish a business in the market place during these challenging economic times.

In order to be eligible to become certified as a minority business enterprise with the State of Florida, a business must meet all of the following criteria:

• Engaged in commercial transactions.
• Domiciled in Florida.
• At least 51% owned by minority person(s) who are permanent residents of Florida.
  • "minority" is defined in Chapter 288.703, Florida Statutes as African America, Hispanic American, Asian America, Native American or American Woman.
  • "American" is defined as a citizen of the United States of America.
• Managed and controlled by minority person(s).
• Performing a useful business function.
• A small business which:
  • is independently owned and operated;
  • has a net worth of not more than $5 million; and
• employs 200 or fewer full-time, permanent employees.

At present, there are literally billions of dollars of pending contract opportunities in Florida each containing minority business owner goals. Receiving these lucrative contracts takes more than an offer to provide the service or goods at a low price.If a company is not certified, then these dollars may be going to other companies who took the time and effort to become certified. In spite of the paperwork, the certification process can be lucrative and rewarding. As companies gain expertise and develop business relationships in this market, owners find that a mix of government and private contracts is a major factor assisting continued work and cash flow during economic downturns.

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