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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 Federal Fair Housing Act prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability).  Florida State and local ordinances likewise prohibit housing providers, including community associations, from discriminating against anyone protected by the law.

You may have an understanding of the fair housing laws and also know that discrimination on the basis of handicap (or disability) includes the refusal to permit reasonable accommodations or modifications.  Are you aware of other protected classifications? Local ordinances, on a county and/or municipal level, also govern actions of housing providers. In addition to the classifications mentioned above, some local ordinances include age, marital status, political affiliation and sexual orientation in the protected classifications. 

Community associations need to be aware of the local ordinances.  A board member or manager may make a statement or take an action in violation of the law for what seems like a perfectly valid reason.  In some cases those decisions ultimately required the association (or management) to pay thousands, even hundreds of thousands, of dollars in damages and penalties.  Some examples include:

• National Origin Discrimination found when the housing provider charged Russian applicants a fee over and above the fees charged to American applicants. 
• An association paid $15,000.00 to a homeowner after it refused to allow him to install a window air conditioning unit in his home.  The homeowner suffered from pulmonary asbestosis, asbestos-related pleural disease, and chronic "irritative" bronchitis.
• Discrimination found when a condominium association would only allow an owner to install a ramp at the rear entrance of her building if she agreed to sign a release stating that she would maintain the ramp at her own expense. 

The Justice Department just announced its largest settlement of a housing discrimination case.  The housing provider (property management) paid $1.25 million to settle claims of failing to grant reasonable accommodations to disabled persons.  Assistant Attorney General Thomas E. Perez said: “Property owners and managers have no excuse for violating our nation’s fair housing laws by refusing to accommodate people with disabilities.”

Board members - please take the time and the effort to understand these and other fair housing requirements.

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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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