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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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4 Comments
  • Avatar
    Marilyn Lane
    March 30, 2009

    Lisa,
    Thanks for this timely info.
    Could you post the links for the forms you reference (see quote below), please?
    “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.”
    Thanks.

  • Avatar
    Lisa Magill
    March 31, 2009

    There are many websites devoted to fair housing issues. The City of Seattle actually publishes Sample Policies regarding Reasonable Accommodations for Persons with Disabilities. The URL is:
    http://www.cityofseattle.net/civilrights/documents/reas%20accomm%20policy.doc

  • Avatar
    Barbara Feeney
    April 2, 2009

    Dear Ms. Magill,
    Unfortunately, there is no standardized format of documentation which is universally accepted by housing providers, courts, or administrative arbiters (e.g. the Florida Department of Business and Professional Regulation which arbitrates complaints by condo owners against Condo Boards and Associations, some of whom are overzealous and hostile in their actions). For homeowners and their emotional support animals, it is strictly a gamble, often ending in tragedy for the human and animal alike.
    Adding to the confusion and opportunity for abuse, the standards for the right to a service animal in public accommodations (per Americans with Disabilities Act) are very different from those regarding the right to an emotional support animal (per Fair Housing Act). Specifically, per ADA, service animals may require training while per Fair Housing, emotional support animals do not require training. Additionally, eligibility for certain disability related benefits (under ADA) require certification of disability, but per Fair Housing certification of disability is not necessary for eligibility for an emotional support animal. The recently published HUD rules clearly explain the differences, but many housing providers and attorneys continue to act as if they are ignorant of the differences. Whether they are merely ignorant or deliberately abusive, the effect is the same. People who cannot afford first class legal representation to enforce their rights are at their mercy.
    Relying on patients and health care professionals to craft legally sufficient documents and puts an undue burden on patients and health care professionals alike.
    This is where you and your firm can help. Would you develop a form or set of forms that are legally sufficient and which specify a clear and concise protocol for people who need an emotional support animal, consistent with the Fair Housing Act and new HUD rules referenced above? Please say, “Yes”.
    Floridians need a straightforward and legally sufficient procedure to document the need for a Fair Housing Assistive Animal Permit, similar to the Florida Department of Motor Vehicles’ procedure for a Disabled Person Parking Permit http://www.flhsmv.gov/dmv/forms/BTR/83039.pdf.”
    The application would be signed by the applicant and an appropriate licensed health care provider, and submitted to an appropriate local or state agency which would, in turn, issue a Fair Housing Assistive Animal Permit.
    The documents should include, at minimum:
    1. A form letter (with check lists of relevant options) to the housing provider from the licensed health care or mental health provider indicating the patient’s need.
    2. A form letter (with check lists of relevant options) from the resident to the housing provider requesting waiver of the “no pets” rule as a reasonable accommodation to his/her disability.
    3. A deadline for response from housing providers. I would suggest 10 days or whatever is legally required.
    This would educate all the stakeholders, effectively standardize the process, be HIPPA compliant, and eliminate harassment, unnecessary litigation and DBPR administrative procedures.
    In addition to the suffering of many people, the suffering of animals calls out for justice. Last year Palm Beach County Animal Care and Control euthanized approximately 18,000 healthy but homeless animals. In a desperate effort to reduce the population of unwanted animals, the Board of County Commissioners enacted a comprehensive spay and neuter law. In recent news reports, Director of Animal Care and Control Diane Suave stated that due to increasing rates of unemployment, foreclosures and evictions many heartbroken people are surrendering their animals to Animal Control because they cannot find housing that will allow them to bring their animals. Sometimes, in the middle of the night, they abandon the animals by chaining them to the fence at Animal Control, where they are found in the morning, frightened and hungry. Ms. Suave attributes this tragic spike in abandonment to current housing woes. If merely an additional 2 percent of Palm Beach County residents could adopt an assistive animal, we would put an end to this tragic suffering.
    Think of the horrible dilemma of those who are losing their home due to foreclosure, or are living in a home (perhaps with newly enacted “no pet” rules they cannot sell, and yet are ignorant regarding their right to have an assistive animal. They are forced to choose – to lose their home and be faced with homelessness (for themselves and their family) or put their (or their child) companion animal to death. Think of what it would mean if they had access to a clear, transparent, unambiguous path to eligibility for an Assistive Animal Permit for themselves or a member of their household.
    These difficult economic times will eventually pass. While most of us will regroup and come out on the other side of these dark days, for many, the deep wounds of unnecessarily losing a beloved animal will never heal.
    I understand there might be those who would perceive your leadership in this matter as being in conflict with some of your other professional commitments. But I’m confident there are good faith means to resolve these difficulties, just as I am confident that your leadership can facilitate the pace toward due process and justice in this matter.
    I need your legal expertise and resources to help solve this problem. I am not looking for any money or compensation for myself. As far as I’m concerned, the product would be all yours. I would ask only that it be made available at no cost or low cost for people who are poor, especially for seniors on a fixed income and other people with disabilities.
    Sincerely,
    Barbara Feeney

  • Avatar
    Janet Brewer
    January 5, 2011

    Live in 55 plus certified older mobile home park. Established in 1975 without designated Pet section, but during development Pet section added and stayed same (50-50 split) till we, the residents bought park. Has stayed same since. With over 200 units in Pet section available for accommodation of pets (never have been without any for sale) do we have to allow pets in No Pet area with Dr.’s note. Isn’t there something in law referring to “causing negative effects on surroounding homeowners”? Our house would immediate sell for less with pets around and also I have high blood pressure — can validate– due to this stress. Thank you very much.
    RESPONSE: The Fair Housing Act applies to every section of the community. Thus, the board has to consider each request for a reasonable accommodation or modification.