Posted on March 30, 2009 by Lisa Magill

Federal Court Rejects FCHR Finding of "Reasonable Cause" in Prescription Pet Case

 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.


[1] The Florida and Federal Fair Housing Acts are essentially the same. Local Acts contained in county or municipal codes are also likely to apply.

 

[1] The Florida and Federal Fair Housing Acts are essentially the same. Local Acts contained in county or municipal codes are also likely to apply.
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Posted on March 17, 2009 by Kevin Edwards

Pets Just May be the Right Medicine

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.

First, the owner needs to provide medical 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 animalis needed to overcome or deal with the substantial impairment of a life function. If an owner cannot produce such documentation, the Board does not need to allow the pet. Some federal courts also require the owner to show that the animal has some special skills or training to set it apart from an “ordinary” dog or cat. The extent of such training is debatable. At least one court has ruled that simple obedience training is sufficient. However, the recent trend in these cases appears to allow emotional support animals even without a showing that the animal has special skills or training. The reason offered is that the animal by its very nature provides a calming effect that directly lessens the affect of an owner’s disability. Still, the law is unsettled in this area. 

Directors must make a business decision with these types of cases. The Board may legally reject an owner’s request for a service animal until and unless the owner proves that the animal has some special skills or training to alleviate the disability. However, the owner may then file a housing discrimination complaint against the association, which can be both time consuming and very expensive. Most Boards are not willing to push the envelope this far.

If the Board decides to allow a pet as a reasonable accommodation, it will not prevent it from continuing to restrict pets for other unit owners without a handicap (assuming the restriction is uniformly enforced). In addition, a service animal cannot become a nuisance or threat to the other unit owners. If the animal ultimately does become a nuisance, the Board could demand its removal and such action would not be housing discrimination.
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