Service Animals in Condos

Further Court Decision Further Narrows Service Animal Abuse

By Michael S. Bender, Esq., Kaye Bender Rembaum
Michael-BenderIt has been a growing trend for residents to make the effort to circumvent pet restrictions in governing documents by claiming a disability that requires the use of a “service animal” in order to have full use and enjoyment of the property.  When this practice began, very little medical support for the allegation was generally necessary by those agencies that reviewed and decided discrimination complaints. In recent years, more stringent requirements evolved, as are further set forth in our Legal Morsels article on Service Animals in May 2011. In a recent case in the U.S. District Court, Southern District of Florida, the Court provided Associations with bases to reject what may not be legitimate requests for a reasonable accommodation under Fair Housing laws.

In Robins v. The Towers of Quayside No. 1 Condominium Association, Inc., Case No. 11-23831-CIV-COOKE/TURNOFF, decided on November 28, 2012, the Complaint of the owner claiming discrimination relative to an alleged service animal was dismissed and Summary Judgment granted in favor of the Association.  In this case, the owner had rescued a dog that violated the governing documents of the Condominium by weighing more than the documentary limit.  When the Association notified the owner of the issue, the owner then made the claim that it was a service animal needed to assist him due to depression.  He presented a letter from a physician indicating that the dog was needed to “bolster his self-esteem, create an interactive social environment and would also assist him with major life activities such as resting and caring for himself.”  The Association granted the request.  Subsequently, the dog was involved in violent incidents with other residents and their pets.  As a result, the Association notified the owner of the need to take steps to control the dog.  However, additional incidents occurred and a finding that the dog was “dangerous” was made by the local Animal Services department.  At that point, the Association demanded the removal of the dog from the Condominium.  The owner filed suit, claiming discrimination.

In reviewing and evaluating the facts of the case, the Court concluded that the owner failed to qualify as disabled and was not entitled to the requested reasonable accommodation.   The Court stated that there was no real evidence that demonstrated the owner suffered from a physical or mental impairment that substantially limits one or more of his “major life activities,” which is a requirement to qualify.  In its analysis, the Court identified that the “major life activity” that must be involved in the analysis includes “the operation of a major bodily function” and/or “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”  The judge made note of the fact that the owner provided no indication of such a handicap until after obtaining the dog that violated the documents.  The decision also stated that it is the obligation of the requesting resident to provide sufficient information to the Association to support the request for the accommodation.  The failure of the owner to provide sufficient information to the Association results in the inability of the Association to conduct a meaningful review of the application for the reasonable accommodation, which is a requirement before the application needs to be approved.  The initial letter from the physician was also found to be inadequate as not providing sufficient detail about the alleged disability, the level of any impairment, or any manner in which the specific dog, as opposed to some other mechanism or animal, would alleviate or lessen the disability.

Many Associations experience similar factual situations when residents suddenly develop some form of handicap when confronted about a violating animal.  The holding of this case, although at the lowest level of the Federal Courts, is an indication that simply submitting a letter from a medical provider with vague indications of disabilities is not sufficient to qualify for a reasonable accommodation from a pet restriction covenant.  It is important for Associations to evaluate every application submitted on this topic fully and undertake what is considered to be appropriate due diligence before reaching a decision on whether or not to approve a request for an accommodation.  The Robins case clarifies that, if the facts of the situation warrant, disapproving such a request is becoming a more available option than in the past.

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