Remember those funny Seinfeld episodes when Jerry’s father, Mort, served on the board of directors of that fictitious and loony community, Del Boca Vista, that was supposedly in Boca Raton, Florida? Well, apparently, in Miami there is condominium named Del Vista Towers. While there is no relation between the two, we will soon know if Del Vista Towers earns the reputation of that fictional association with a similar name. Reporter Samantha Joseph, in the August 1, 2014 edition of the Daily Business Review, reported that Miami’s Del Vista Towers is being sued by one of its unit owners for failing to permit an owner, who suffers from post-traumatic stress disorder (“PTSD”) and severe depression, to have his assistance animal in accordance with the Fair Housing Act (“FHA”) – a pit bull.
During a motion for summary judgment hearing, Del Vista Towers argued that a Miami-Dade ordinance prohibits pit bulls; therefore, the condominium association did not have to grant the owner’s request. According to reporter Joseph, and to the contrary of the association’s arguments, Judge Jose Martinez agreed with the owner’s position that the U.S. Department of Housing and Urban Development allows reasonable accommodation without regard to breed, that emotional support animals do not require any training and that if the county ordinance were enforced, it would violate the FHA by permitting a discriminatory housing practice in that by denying the owner’s request to keep his pit bull, he is not afforded an equal opportunity to use and enjoy his dwelling. The Judge’s rulings appear consistent with prior FHA decisions. While there is no such thing as a sure thing in any court case, it will be quite a surprise if the owner does not ultimately prevail in this one.
In considering the delicate nature of requests for emotional support animals there is a minefield of mistakes that community associations can trip over. Some of these mistakes were recently made by Bhogaita v. Altamonte Heights Condominium Association, Inc., Case No. 13-12625; 13-13914 (11th Cir., August 27, 2014) in which a judgment against the association, in favor of the unit owner, was upheld by the U.S. Court of Appeals for the Eleventh Circuit. In this case, the unit owner, who suffers from PTSD that developed as a result of a sexual assault which occurred during the unit owner’s military service, purchased a dog, “Kane,” whose weight exceeded the association’s 25-pound pet weight restriction. Two years after acquiring the dog, the association demanded the dog’s removal due to the weight violation. In response, the unit owner provided two letters from his treating psychiatrist which provided that, due to mental illness, the unit owner had limitations regarding social interaction and coping with stress and anxiety and that an emotional support animal would help the unit owner cope with the disability.
In response to the doctor’s letters, the association made its first mistake, some might say, the association really stepped in it (pun intended) by requesting detailed information regarding the unit owner’s disability and the dog’s training – the association requested additional information when the minimum threshold to establish entitlement to an emotional support animal had already been reached by the unit owner. The Court found that such threshold had been met by the letters from the unit owner’s psychiatrist because they (i) described the nature and cause of the unit owner’s PTSD diagnosis, (ii) provided that the unit owner was substantially impaired in the major life activity of working and (iii) explained that the dog alleviated the unit owner’s disability related symptoms. Additionally, although not discussed by the Court, it is worthy to note that the FHA, unlike the Americans with Disabilities Act, does NOT require specific training for emotional support animals or service-type animals.
Nevertheless, despite having met the minimum threshold, the unit owner responded to the association’s request for additional information by providing a third letter from the psychiatrist and a personal response answering each of the association’s questions in turn. In this response, the psychiatrist and the unit owner described the unit owner’s PTSD and how it affects major life activities. In addition, the unit owner mentioned a physical disability related to multiple knee surgeries and knee injuries suffered during his military service.
After obtaining this response and learning of the newly claimed physical disability, the association made its second and third mistakes (twice and in addition to committing the first mistake again!) by requesting very detailed information regarding the unit owner’s disabilities and demanding that if the unit owner failed to respond by a certain deadline, he had to remove the dog!
The Court provided that, although the association is empowered to conduct a “meaningful review” of the unit owner’s request for a reasonable accommodation, “[t]he failure to make a timely determination after meaningful review amounts to constructive denial of a requested accommodation.” The Court also provided that a “meaningful review” is for the association to gather “information necessary to apprise [the board of directors] of the disability and the desired need for an accommodation” and that requesting information outside what is minimally required by the FHA is beyond the scope of a “meaningful review.”
Remember that any information sought must be relevant to the request and must be within the scope of a “meaningful review” and that, once the association has the information to satisfy the minimum requirements of the FHA, the association should approve the requested accommodation within a timely manner. It is important to note that an evaluation of a request for a reasonable accommodation under the FHA is a highly fact-specific analysis and must be reviewed on a case-by-case basis. Community associations should seek the assistance of their legal counsel when in receipt of such a request.