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Hawn v. Shoreline Towers Phase I Condominium Association, Inc. et. al

Lisa A. Magill, Florida Lawyer, Real Estate AttorneyCourt 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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  • natalie ferrero
    July 12, 2009

    55 and older community..century village deerfield owner wants to keep a diabetes service dog …. no pet policy in effect since opening of condos 1977

  • natalie ferrero
    July 12, 2009

    55 and older community..century village deerfield owner wants to keep a diabetes service dog …. no pet policy in effect since opening of condos 1977

  • Maureen Ahmed
    October 14, 2010

    Is there a vicious pet law for the Fort Myers area? We are in a homeowner’s association (not condo) and would like to cite any “list” of vicious pets that should not be allowed. Thank you for your assistance. Maureen Ahmed
    RESPONSE: There are state laws regarding regulating the control and conduct of animals as well as local ordinances. Please contact your City/County Clerk to learn what governs your community.

  • Kathy Johnston
    October 25, 2010

    Since a service animal is not a ‘pet’, does the renter of the condo have access to the common area (pool, club house, etc) with the service animal?
    RESPONSE: According to rules published pursuant to the ADA (Americans with Disabilities Act), there is a big distinction between ‘service animals’ and ’emotional support animals’. An animal may qualify as both a service animal and an emotional support animal under certain circumstances.
    The association is not necessarily required to allow an emotional support animal in community common areas (except as otherwise necessary for ingress to and egress from the dwelling), it depends upon the nature of the major life functions substantially impaired as a result of the disability.