PET ISSUE REFERENCES

The American Disabilities Act and the Department of Justice, and HUD, and current case law on emotional support animals supercedes all governing documents.

The Office of Equal Opportunity looks more favorably upon emotional support animals than do the Florida District Courts. Complaints filed with the OEO are free of charge and so is the attorney, whereas the attorney for the association to defend against a complaint is costly. The fines for willful discrimination are also quite costly!

I shall share some of the case law and references on the subject as follows:



Fair Housing Act

Bridgeview Ass’n, Inc. v. Casale,

Case No. 2005-02-2449 (Mnookin / Summary Final Order / October 18, 2005)

• Even where a unit owner qualifies as a disabled individual to which the association is required to provide reasonable accommodations, the owner must demonstrate that maintaining a dog, in violation of the association's declaration of condominium, is a reasonable accommodation to the individual's disability. When it is shown that the owner's dog was not prescribed by any medical personnel so as to assist with the owner's disability, the dog was not trained in any special manner to alleviate the symptoms of the owner's disability and the dog merely served as a source of contentment to the owner, the dog is not shown to be a reasonable accommodation and the association is not required to permit the owner to maintain the dog in violation of its governing documents. The written statement from her treating physician to the effect that the dog is medically necessary to alleviate the patient's symptoms in the same manner as a prescription, was unavailing as it was not shown that the pet was needed to accommodate the disability.



High Point of Delray West Condo. Ass’n Section, Inc. v. Sturge,

Case No. 2005-03-1704 (Grubbs / Summary Final Order / October 7, 2005)

• When the respondents asserted that the tenant had a disability authorizing the presence of the dog under the Fair Housing Act, the respondents were provided with time to amend their answer to allege facts establishing that the tenant had a disability and that the dog was a reasonable accommodation necessary to afford the tenant an equal opportunity to use and enjoy the unit or to file documentation or a statement establishing that the respondents had filed a fair housing complaint with an appropriate agency. After the respondents had been provided with several chances to either amend their answer or file a fair housing complaint but failed to do so, a summary final order was entered requiring removal of the dog.



Sunrise Landing Condo. Ass’n of Brevard, Inc. v. Wilson,

Case No. 2005-03-4083 (Grubbs / Summary Final Order / October 6, 2005)

• When, during a conference call, the respondents asserted that that one respondent had hearing and psychological disabilities requiring the keeping of the over-the-weight-limit dog, respondents were provided time to amended their answer to allege facts establishing a "fair housing" defense, which would include allegations establishing that she had a disability and allegations establishing that the dog was a reasonable accommodation necessary to afford her an equal opportunity to use and enjoy her unit.

The failure of the respondents to amend the answer to include specific factual allegations precluded consideration of the "fair housing" defense.


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As per David's input, the following is supportive of his position:

The Court relied heavily upon an earlier decision of another Federal Court which opined that an association has the right to inquire of the doctors writing the prescription letters as to the doctor’s practice and medical licensing, an explanation of the nature of the alleged disability and why the disability requires the unit owner to have a pet.

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An Arbitration decision from a few years back:

The Fair Housing Amendments Act of 1988 prohibits discrimination on the basis of several factors, including disability. The law requires that a person with a disability be accommodated and given an equal opportunity to use and enjoy a dwelling."

Arbitrator Melissa Mnookin of the state Department of Business and Professional Regulation ruled against Casale in October The arbitrator said that Casale's doctor's letter did not establish that the dog is necessary to accommodate her disability, does not have special training to assist with disabilities, and does not perform any special function, such as retrieving objects.

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In a joint statement in 2004, the U.S. Department of Housing and Urban Development (HUD) and the Justice Department explained that physical or mental impairments include, but are not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV, mental retardation, emotional illness, drug addiction (excluding an addiction caused by current, illegal use of a controlled substance) and alcoholism.

Determining Factors

Many of these conditions are not visible to the average person, but may nonetheless require a service or emotional-support animal. To make that determination, your association board may be entitled to request and obtain additional information to substantiate the resident’s disability-related need for the accommodation.

But if the person's disability and the need for an animal are evident, you are not permitted to request additional information. If the disability is evident, but the need for the animal is not, the association is limited to requesting only the specific information necessary to evaluate the disability-related need. If a disability is not obvious, such as a mental condition, high blood pressure, diabetes or other similar types of disabilities, you may request disability-related information that: 1) verifies the condition that substantially limits one or more of the person’s major life activities; 2) describes the needed accommodation; and 3) demonstrates the relationship between the person's disability and the need for the requested accommodation.

You can easily verify the condition if the person receives Social Security disability insurance benefits. HUD and various other enforcement agencies are much more lenient than the courts. For example, HUD and the Justice Department say that a "credible statement by the individual seeking the accommodation, a doctor or other medical professional, a peer support group, a non-medical service agency or a reliable third party who is in a position to know about the individual's disability may also provide verification of a disability."

In our view, an association should require a more credible source- such as a licensed physician specializing in that particular disability- to provide an unequivocal statement that the person suffers from a disability. The physician should be required to specifically list what those activities are and how the pet will help.

That requirement can help screen the non-medical requests, saves the association research time and helps protect the association from challenges by other homeowners in the future.

In fact, a West Virginia district court in 2001 went so far as to say that it is reasonable, in situations where the disability is not apparent, to insist upon a second concurring opinion from a qualified physician selected by the housing provider to confirm the need for a service animal. Florida state courts haven't required this level of proof, but they have agreed that a physician specializing in the specific disability who provides a written statement listing the person's disability, the need for a service or support pet and how the pet will assist with the disability will, in most cases, suffice. Recently, one Florida association received a rheumatologist's statement that his patient suffered from arthritis and severe mental conditions that required a pet as a reasonable accommodation. While the rheumatologist is able to give an opinion on the patient's arthritis, the specialist was not in a position to speak on the patient's mental condition.

There is a reference in the sidebar under WEB SITE LINKS AND SERVICES - CONDOMINIUM STUDY & REFERENCE GUIDES - Joint Statements from HUD and DOJ on Reasonable Accommodations which you may find instructive.

This is a case-by-case topic where one size does not fit all.