Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

Board members are often asked to decide whether to approve or deny a request to keep an animal in a "no-pet" community.  Those decisions are highly scrutinized.

The Philadelphian Owners' Association (POA) faces discrimination charges filed by HUD over its process for evaluating requests for accommodation or service animals.  The charge seems to ignore differences between service animals as defined by the Americans with Disabilities Act (ADA) and emotional support animals required as accommodations under the Fair Housing Act (FHA).  If you are not familiar with those distinctions, please refer to a previous post titled "Lions, Tigers & Bears, Oh My ....The Difference Between Service Animals & Emotional Support Animals".  The Firm's Community Update addressed distinctions between ADA and FHA recently as well.  Please read "Do You Have to Build a Ramp?  Fair Housing Laws Collide".

In this new charge HUD contends that the POA:

• required burdensome and invasive medical documentation before requests for accommodation would be considered,
• severely limited access to the complex's facilities for residents accompanied by assistance animals, and
• failed to address several instances of harassment of residents requiring assistance animals.

 This charge alleges that the Association's requests for verification are improper - more than improper, illegal.   The charge specifically says:

Respondent POA‟s pet policies discriminate against persons with disabilities in need of an assistance animal in many ways. For example, persons with disabilities who use an assistance animal may not enter the following areas when accompanied by their assistance animal: passenger elevators, lobby, lobby sitting rooms, library, art room, social rooms, swimming pool areas, fitness rooms, library, mailroom, common areas, management office or laundry room. In addition to its denials of valid reasonable accommodation requests, Respondent POA‟s pet policies seek private medical information from a resident requesting an accommodation, to which it is not entitled.

Will this charge result in a finding of discrimination and fines, penalties or damages assessed against the association?  The board was entitled to request verification of the disability and need for accommodation in Hawn v. Shoreline Towers Phase I CAI, but that case did not involve claims that the association facilitated a hostile environment for persons with disabilities by failing to stop intimidation and harassment by other residents.

I encourage your association to adopt a policy for handling requests for reasonable accommodations under the FHA.

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The case against a condo association in Century Village reported by the Sun-Sentinel prompted me to alert readers of the consequences associated with violations of state and federal fair housing laws. If you aren't familiar with the case click HERE for the most recent article.  In short, Broward County filed a lawsuit against the condominium association for discrimination and retaliation because it refused to grant a resident permission to keep a small dog after her doctor gave her a prescription for the dog as an emotional support animal.

Please keep in mind that there are consequences for unlawful discrimination, which includes the failure to make a reasonable accommodation or allow a reasonable modification if necessary to ameliorate the effects of a disability.

Florida Fair Housing Act – Administrative Remedies
The complainant may file housing discrimination Complaint with the Florida Commission on Human Relations.  The Commission (or local agency) is generally required to first attempt informal methods such as conferences with the parties, conciliation agreements, and persuasion. If the complaint cannot be resolved within 180 days, the complainant may commence a civil action in the appropriate court, or may petition for an administrative hearing.  If the Commission determines, as a result of its (or a local agency’s) investigation, that there is reasonable cause to believe that a discriminatory practice has occurred, the Attorney General, upon request of the aggrieved party, must bring an enforcement action and may also institute a civil action.  As an alternative, the Commission or local agency may commence an administrative proceeding pursuant to the Florida Administrative Procedures Act (Chapter 120 of the Florida Statutes).

Florida Fair Housing Act – Direct Civil Action
The Commission (or local agency) may commence a civil lawsuit.  That lawsuit must be filed within two years after an alleged discriminatory housing practice has occurred.

Federal Fair Housing Act – Administrative Remedies – Complaint and Investigation
In addition to the remedies set forth in the Florida Law, an complainant may elect to file a Complaint of a discriminatory housing practice with the Secretary of Housing and Urban Development.  If the agency concludes that prompt judicial action is necessary to carry out the purposes of the Act, it may immediately bring a civil action for appropriate temporary or permanent relief plus damages and penalties. 

Federal Fair Housing Act – Administrative Remedies – Action after Investigation
If a charge is issued, either party (the accused or accuser) may elect to have the claims asserted in the charge resolved in a civil action. If that happens, the Attorney General files suit on behalf of the complainant in federal district court. If the case continues through the administrative process, and the administrative law judge (ALJ) finds discrimination, he or she shall grant "appropriate relief", which may include an award of actual damages, injunctive and equitable relief, and civil penalties against the offender.

Federal Fair Housing Act – Direct Civil Action
The complainant may bring an action in federal district court.  Exhaustion of administrative remedies is not a prerequisite to bringing suit, however a suit may not be commenced after an ALJ has commenced a hearing on a charge involving the same discriminatory practice.

Federal Fair Housing Act – Enforcement by Attorney General
When the Attorney General has reasonable cause to believe that a person or group of people are engaging in a pattern and practice of discrimination that raises an issue of general public importance, the Attorney General may commence a civil action in the appropriate federal district court.
 

Community leaders can consult with counsel to develop a policy or procedure for handling accommodation requests.

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Which Controls - the ADA or FHAA?

The ADA prohibits discrimination by private entities such as hotels, motels, inns, and other “places of public accommodation.” Discrimination under the ADA includes the failure to remove architectural and communication barriers that are structural in nature in existing facilities where such removal is readily achievable. Title III of the ADA also requires a public accommodation to modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability. Condominium buildings may be deemed places of public accommodation if they operate as “places of lodging” or are open to the general public.

The Federal Fair Housing Amendments Act (FHAA) says a housing provider (including a community association) cannot discriminate in the sale, rental or terms of housing because of a handicap of a buyer or renter. Discrimination on the basis of a handicap includes a refusal to make a “reasonable accommodation” in rules, policies and practices or services when such may be necessary to afford the disabled person equal opportunity to use and enjoy the dwelling. An increasing number of condominium residents are seeking exemptions from “no pet” policies, based on a need for (often on advice of their doctors) a companion animal as a means of combating a variety of illnesses, including depression, anxiety, arthritis, and heart disease. The association may, therefore, have to allow a resident to keep an animal on the property despite the published rules.

Is the accommodation only for service animals as defined by the ADA?

Recently the Department of Justice modified the rules defining the term “service animal.” The Department’s final rule defines the term "service animal" as

"any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition….”

This may cause you to say “wait, if the Department of Justice limits service animals to dogs, why would the association even have to consider a request for permission to maintain a cat, bird or other animal on the property?” or “if the Department of Justice says that service animals must be trained then shouldn’t the disabled person have to show what training the animal completed?” Sounds perfectly reasonable, right?

The Department of Justice explained an important distinction between a service animal for ADA purposes and a support animal for FHAA purposes. The new rules limit service animals to dogs, but that doesn’t mean that housing providers can prohibit the use of other animals as a reasonable accommodation for a disability pursuant to the FHAA.

In the final rule, the Department excluded emotional support animals from the definition of "service animal." The ADA definition says that emotional support, well-being, comfort, or companionship will not qualify as “work” or “tasks” for the purposes of determining whether an animal is a service animal. Therefore, emotional support animals are not necessarily service animals (although a dog can qualify as both at the same time).  The U.S. Department of Housing and Urban Development confirmed exactly that in a memorandum directed to fair housing enforcement officers and regional counsel.

What does this all mean for community associations?

The Association cannot dictate the type of animal it will approve as an accommodation. The Board of Directors must permit the accommodation as long as the resident qualifies for that accommodation. I suggest that you consult with counsel to evaluate the criteria in each case, based upon the specific facts and circumstances presented.

What about training?

The training issue is still debatable and debated. There are some cases that say the innate qualities of the animal are enough to ameliorate the limitations arising from the disability. There are others that say the person requesting the accommodation must demonstrate some training. I know the fair housing investigators in both Broward and Palm Beach Counties will issue a finding of probable cause if the association rejects an accommodation request solely as a result of lack of evidence the animal is trained.

What does it mean for persons with accommodation animals?

It means that even though your dog, cat, ferret or parrot is an accommodation/emotional support animal, you may not be entitled to bring it to restaurants, the mall, the supermarket or other places of public accommodation.

This is a “hot-button” issue in many communities across the country. Community association boards should consider whether it is appropriate or advisable to adopt policies and procedures for handling accommodation requests.

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The Federal Fair Housing Act  (FHA) prohibits discrimination in any activities relating to the sale or rental of a dwelling because of race, color, religion, sex, handicap, familial status or national origin. The term "familial status" is defined as one or more individuals (who have not yet attained the age of 18 years) being domiciled with a parent or guardian or a designee of such parent. State statutes (Chapter 760, Florida Statutes) and local ordinances also regulate housing discrimination in regards to age, marital status, political affiliation, sexual orientation and other classifications.  Adding "familial status" to the list of protected classifications made former "adults only" communities either apply for an exemption or change their practices.

The most common exemption is known as the Housing for Older Persons Act (HOPA) exception that applies to communities operating as “55 or over” housing. To qualify for this exemption, the following criteria must be met:

• At least 80% of the occupied units must be occupied by at least one resident over the age of 55;
• The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the Association) to provide housing for persons 55 years of age or older.
• The community must engage in adequate age verification procedures and routinely determine the occupancy of each unit to update the community census; and - here in Florida
• The community needs to register with the Florida Commission on Human Relations and keep that registration current.

If the community does not qualify for the Housing for Older Persons exemption, it must allow families with children.  It doesn't matter if there are no other children.  It doesn't matter if the community doesn't have facilities for children or a place for them to play.  A community in Orange City, Florida recently agreed to pay $415,000 in monetary damages and civil penalties after the court found that the defendants violated the FHA by engaging in a pattern or practice of discrimination against families with children.  The Department of Justice prosecuted the lawsuit against the housing provider.

The Fair Housing Center of the Greater Palm Beaches recently filed suit against a condominium association in Boca Raton, Florida for familial status discrimination.  The association first rejected a sale to a man with three children and later refused to approve a tenancy where two children were expected to live in the unit.  Both governmental agencies and private fair housing advocacy groups use "testers" in support of discrimination claims.

If you're not sure your community is in compliance with the requirements of the Housing for Older Persons Act, please consult with legal counsel.

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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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