REMBAUM'S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

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The Lurking Danger of Association Websites; Accusations of Discrimination

Very recently, more and more condominium and homeowner associations find themselves as potential defendants in Federal Fair Housing Act (the “FHA”) discrimination litigation due to the association’s website. It is alleged that the failure to make the website easily accessible to those with visual impairments or who are blind is discriminatory. In short, the FHA prohibits making, printing or publishing, with respect to the sale or rental of a dwelling, anything that indicates any preference, limitation, or discrimination based on a handicap, or the intention to make such preference, limitation, or discrimination. Thus, the FHA covers all written and oral notices or statements by a person engaged in the sale or rental of a dwelling. Therefore, as the argument presented is explained, if the association’s website is providing information regarding the sale or rental of units or lots, and proper precautions are not taken to ensure that the website can be “listened to” rather than “read” by an individual who is visually impaired or blind, then that association could be a prime target for the threat of a federal discrimination lawsuit.

Victim’s Awareness, Inc. is a national not-for-profit corporation whose membership consists of persons with disabilities and others who are committed to equal access, equal opportunity and equal rights for protected classes. Employees of this company, along with its constituent members, troll the internet searching for websites offering housing for sale or lease that do not provide a mechanism for those who are visually impaired or blind to have the  content of the website automatically read to them. In order to have this functionality, what is technically referred to as a “widget” must be installed by the website host.

Typically, organizations such as Victim’s  Awareness, Inc. will send a demand letter including a letter of explanation, demand for evidence preservation, and a draft copy of the to-be-filed federal lawsuit and complaint demanding that the association immediately retrofit its website to ensure equal access by the visually impaired and blind. Failure to do so guarantees a lawsuit will be filed in Washington, D.C. against the association. Typically, this type of lawsuit is extremely expensive to defend.  If liability results, the damages can easily be in the tens, if not hundreds, of thousands of dollars.

Sadly, even immediate compliance may not be sufficient to avoid monetary penalties.  Because the demand brings about the desired change, the would-be plaintiff, in this case, Victims Awareness, Inc., argues that they are entitled to their attorneys’ fees and costs for their preparation of the demand letter, preservation of evidence demand, and draft complaint. Therefore, even if an association complies with the demand by making its website accessible to those who are visually impaired, Victims Awareness, Inc.’s asserts that its attorneys’ fees and costs will need to be satisfied. If an association refuses, then, even though the website is now FHA compliant, Victim’s Awareness, Inc. suggests that they can still file the lawsuit to collect its attorney’s fees and costs.

Because discrimination lawsuits is one of the few areas where board members can have individual liability it is likely that most associations will fold their hand and agree to the would-be plaintiff’s demands. It will be interesting to see the results should an association decide to fight such demands on the basis that the FHA also provides that reasonable modifications must be granted by an association in response to a handicapped person’s request so long as the modification is paid for by the person making the request. It remains to be seen whether such an argument pierce the demands made by groups such as Victim’s Awareness, Inc.?

A community association risks being in harm’s way when it operates a website that promotes sales and leasing activities and is open to the public at large. In this instance the ol’ adage remains true- “an ounce of prevention is worth a pound of cure”. Thus, to find additional  information on the “widget” to bring your website into compliance and to learn more about this issue you can visit www.userway.com.  In addition,  consider discussing this important matter with your association‘s attorney.

New Legislation Pending: Service Animals – You Be the Judge

If you live in a community association, and especially if you serve as a board member in an otherwise “No Pets Allowed” community, few subjects are more polarizing than that of a member’s request for a “Service Animal,” most especially, an “emotional support dog.” On February 27, State of Florida Representative Ricardo Rangel, (District 43, Dem, Osceola County) filed House Bill 1073, titled “Service Animals.” It is officially referred to as the “Dawson and David Caras Act.”

For many situations, HB 1073 clarifies that a person seeking an emotional support pet MUST have a disability and the service animal must be trained or perform tasks of benefit to the disabled person requesting the accommodation.  In many respects, HB 1073 codifies the holdings of various court decisions into the Laws of the State of Florida. If enacted into law, relevant portions of HB 1073, with which every board member and manager should be familiar, follow:

  • Definition of a Service Animal. “Service Animal” is defined as “any domesticated animal that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing nonviolent protection or rescue work, pulling a wheelchair, assisting an individual  during a seizure, alerting individuals to the presence of  allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping  individuals with psychiatric or neurological disabilities by  preventing or interrupting impulsive or destructive behaviors.”
  • Emotional Support Animal. “The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this paragraph.”
  • Proof. “Documentation that the service animal is trained is not a precondition for providing service to an individual accompanied by a service animal.”
  • Vaccines. “A housing accommodation may request proof of compliance with vaccination requirements.”
  • No Extra Charge. “An individual requiring assistance who has a service animal is entitled to full and equal access to all housing accommodations … and that individual is not required to pay extra compensation for the service animal.”
  • Trainers. “Any person who trains a service animal, while engaged in the training of such an animal, has the same rights and privileges with respect to access to public facilities and housing accommodations … as is provided for a person … who is accompanied by a service animal. … an individual who is the trainer of a service animal  is entitled to full and equal access to all housing accommodations provided for in this section, and that individual  is not required to pay extra compensation for the service animal.”
  • Public Accommodations. “An individual requiring assistance has the right to be accompanied by a service animal in all areas of a public accommodation that the public or customers are normally permitted to occupy. A public accommodation may ask if an animal is a service animal or what tasks the animal has been trained to perform in order to determine the difference between a service animal and a pet.  A public accommodation may not impose a deposit or surcharge on an individual requiring assistance as a precondition to permitting a service animal to accompany the individual requiring assistance, even if a deposit is routinely required for pets.”

While it remains to be seen whether HB 1073 will be voted into law, there is no doubt that it raises many new concerns.  For instance, while there are statutory enumerated remedies for a place of public accommodation, such as a hotel, to demand removal of the service animal that growls,  excessively barks, bites, poses a threat, or fails to respond to its trainer, there are no similar remedies for those same situations that may occur within  a condominium or homeowners’ association.  In addition, a long standing principle of legislative interpretation, overly simplified, is that the inclusion of a specific item in a law is interpreted to mean that the legislature intended the exclusion of all other similarly situated items. Does that mean because “proof of vaccination” can be requested, that no other questions of substantiation can be asked?

Criminal misdemeanor charges can be filed against a person, firm, or corporation and/or their agent who interferes with the rights of a person requiring service animal assistance.  Such charges can also be filed against a person who knowingly and fraudulently represents themselves as the owner or trainer of a service animal.

Should you have strong feelings that HB 1073 should (or should not) be voted into law, you should contact your state legislators to let your voice be heard.