Articles Posted in Pets and Service Animals

Some good news for community associations struggling with questionable requests for the approval of emotional support animals:  The Department of Housing and Urban Development is expected to issue revised guidelines later this year focusing on ESA requests and approvals.  According to The National Association of Realtors, the new guidelines should give landlords, property managers and community associations greater authority to verify that the need for such an animal is legitimate.

The NAR reports it has had separate conversations with HUD and disability rights groups. esupdog-300x234 Senior Policy Representative Megan Booth recently told attendees at a conference that the disability rights groups have expressed concerns over the widespread abuse of requests for companion animals, as they believe it is already making it more difficult for residents with legitimate needs to receive the approvals they require.

It appears that the new HUD guidance will be specifically aimed at curtailing the use of online ESA certification mills.

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MichaelChapnicksrhl-law-200x300Firm partner Michael E. Chapnick authored an article that appeared as a “Board of Contributors” guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Emotional Support Animals Leave Many Condo Associations Howling,” focuses on the growth in requests for emotional support animals in condominium associations and other communities with pet restrictions.  Michael’s article reads:

The laws governing emotional support animals emanate from the Fair Housing Amendments Act of 1988, and its state and local counterparts. The act prohibits discrimination in the provision of housing to disabled persons, and it requires that a reasonable accommodation in an association’s rules and regulations be provided to a disabled person so that they can use and enjoy the property to the same extent as a nondisabled person.

dbrlogo-300x57Disabilities can take many forms: some physical and others emotional and/or psychological.  For emotional and/or psychological disabilities such as depression, there are rarely obvious, external symptoms.

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A recent Florida case involving a condominium association and the dog of a 70 year-old army veteran and widower drew national attention after it was covered initially in the Orlando Sentinel.  The newspaper’s reports chronicle how the association for the Orange Tree Village condominium is attempting to ban the dog because it weighs 41 pounds, which is six more than the maximum weight under its rules, and it may be a banned breed.

As a result of the association’s decision, retired veteran Robert Brady filed a complaint with the U.S. Department of Housing and Urban Development after an arbitrator determined he had to surrender the dog by Jan. 11. dog4-300x171 The federal agency is now looking into whether the association can force the long-time resident to surrender his emotional support dog.

The attorney for Orange Tree Village said that his office has received calls sympathetic to Brady, but his client must enforce its rules that were established to keep residents safe.

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Disagreements over service animals have consistently ranked among the most prevalent types of disputes that arise between community associations and their residents. In South Florida alone we have witnessed numerous investigations concerning discrimination claims —many of which still serve as stark reminders of the severe implications of mishandling requests for service animal accommodations.

Most government investigations begin with a complaint from a resident indicating that their request for assistance animals had been denied or that they had refrained from requesting an assistance animal for fear of being evicted.

In light of the patterns we have seen throughout the years, associations should refrain from automatically denying requests for permission to keep service or emotional support animals without first requesting additional information from the resident. By law, associations are entitled to make inquiries in order to determine if the request is legitimate and whether a service or emotional support animal is a necessary accommodation in order for the resident to have an equal opportunity to use and enjoy their dwelling.

sdogAssociations are entitled to inquire about how the disability affects the resident’s major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with any major life activity that is impaired by their disability when the disability or the need for the requested accommodation is not apparent.  Associations may also request that the resident provide this information from their doctor.

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Can snakes, the animal commonly known for instilling panic upon sight, actually help to ease anxiety?  According to snake owner Darla McGinnis, they can.

WCVB-Channel 5 (ABC) in Boston recently covered a story about McGinnis and her fight with the City of Council Bluffs, Iowa, which currently has a ban on its residents having snakes as pets.

McGinnis — who suffers from anxiety and is pictured below together with her daughter and their pet pythons — claims that her pets are the only things that help to put her at ease.

essnakeHowever, the city isn’t budging.  Albeit recognizing the importance of emotional support animals, Council Bluffs refuses to circumvent its code to grant her the special accommodation that she allegedly needs.

Rather, McGinnis has to travel across state lines to neighboring Omaha, Nebraska, in order to see her loving reptiles.  In the meantime, she intends to continue to battle the ban in hopes to change the existing city code.

Click here to watch the report on WCVB’s website.

The myth that turkeys can’t fly was proven untrue after it was discovered that turkeys can actually soar up to 55 feet in the air. For longer flights, however, they fly like the rest of us – in coach or business class. Or at least emotional support turkeys do, anyway.

Fox News recently covered a story on a turkey that ruffled quite a few feathers on a Delta flight, and it wasn’t because passengers caught a glimpse of the flying fowl from their windows. The turkey – which was brought on the flight as a regular passenger with its own assigned seat and all – was allowed on the flight as an emotional support animal. The traveler who owned the bird was able to provide the airline with the proper documentation required, forcing Delta’s hand into printing a boarding pass for the poultry. But when is enough, enough?

tkey3The honest answer: who knows? Lately, it seems as if the use of emotional support animals is becoming more widespread. Community associations, which are commonly faced with this issue, have been fighting for stricter standards for years. In fact, communities with pet restrictions that have fought passionately against accommodating your regular cat and dog are now having to battle against allowing animals such as pigs and even kangaroos to enter their communities.

The real crux of the matter is that as people get more and more creative with their requests, the law seems to stay silent.

The important thing to keep in mind is that there are certain steps community associations can take to evaluate the service/emotional support animal request to ensure its legitimacy. Remember, there is certain information an association can and cannot ask for, and wrongfully denying a request for a reasonable accommodation may result in a costly and protracted legal battle. When in doubt, consult with qualified legal counsel to guide you through the evaluation process to make sure that you are not exposing your community to any liability – even if the end result means having a turkey as a neighbor.

Click here to read the report in the Fox News website.

If your condominium’s governing documents allow dogs and renters, my bet is there’s a large number of both in your community. We get a lot of questions from condominium boards asking how they can reduce the number of renters and dogs in their buildings because – in the words of one manager: “Our building is going to the dogs!”

Depending on the language in your governing documents, you may have to keep living with the dogs unless or until your membership votes to amend them. If your association’s declaration does do not expressly restrict tenants from having pets, then an amendment will be necessary since a rule cannot conflict with a recorded restriction.

Although the association is authorized to adopt and enforce reasonable rules and regulations governing the operation and use of the condominium property, under Florida law in order for such rules to be valid and enforceable they must not contradict a recorded restriction in the association’s governing documents. In general, provisions in the declaration take precedence over any conflicting language in the rules.

esupdog.jpgWhile the Division of Condominiums has upheld and enforced association rules that specifically differentiate between unit owners and tenants, in such cases the declaration contained express provisions to substantiate the rule. Specifically, the Division upheld a condominium association’s rule restricting tenants from maintaining pets on the premises but allowing pet ownership by unit owners. In Grove Isle Condominium Association, Inc. v. Levy, et al, the association’s declaration provided that “[n]o pets may be kept on the condominium property except for usual and ordinary domesticated pets weighing less than twenty-five (25) pounds which may be kept by unit owners . . .” Based upon that provision, the arbitrator held that the board-adopted rule prohibiting tenants from maintaining pets was valid and consistent with the association’s declaration, which specifically granted unit owners the right to own pets – but was silent on the issue of tenants’ rights regarding pet ownership.

Similarly, in the arbitration case of Quatraine Condominium II Association v. Bradley, the association’s declaration provided that original owners of the condominium were permitted to maintain pets in the condominium residences. The board adopted a rule which provided that lessees were not allowed to have any pets. The arbitrator held that differential treatment between owners and renters was valid.

As such, we recommend that before your board starts promulgating rules that could be unenforceable and, if challenged, subject your condominium to expensive legal fees, check first with qualified legal counsel with regard to the options in your community.

GaryMars.jpgThe firm’s Gary M. Mars was one of only three South Florida community association attorneys whose analysis was featured in a front-page report in today’s edition of the Daily Business Review headlined “Law Cracks Down on Owners Harboring Fake Service Pets.” The article by reporter Samantha Joseph of the DBR, which is South Florida’s exclusive business daily and official court newspaper, focuses on the new state law that creates penalties for association members who try to pass off their pets as service animals. It reads:

Thanks to the new law that now makes it a misdemeanor to lie about an animal’s skill-set as a designated helper to a disabled owner, condo associations have fresh ammunition to enforce their pet policies.

The law, unanimously approved by state legislators, took effect July 1. It amends existing legislation by elaborating on the tasks performed by service animals.

. . . The new legislation redefines “service animal,” for the purposes of public accommodation and limits the term to a dog or miniature horse.

It seeks to protect a broader cross section of people by expanding the existing state law’s definition of disability “deaf, hard of hearing, blind, visually impaired or otherwise physically disabled.”

The new law covers “physical or mental impairment that substantially limits one or more major life activities,” like walking, seeing, hearing, speaking, breathing, learning and working.

It protects people with physical, sensory, psychiatric, intellectual, and mental or psychological disorders specified in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

It also goes one step further than its predecessor to require the animal’s tasks be directly related to the handler’s disability.

“What the legislation really did was provide some clarification,” said Gary Mars, shareholder at Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel. “As association lawyers, it gives us a better definition of service pets, which prior to this legislation had less definition.”

Our firm congratulates Gary for being called on by the editors and reporters of the Daily Business Review for his insight into this important new legislation for community associations. Click here to read the complete article in the newspaper’s website (registration required).

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Yogi Berra once said “it ain’t over ’till it’s over.” That statement perfectly describes the most recent decision to come out of Florida’s Fourth District Court of Appeal dealing with a unit owner’s request for a reasonable accommodation under the Fair Housing Amendment Act of 1988 (FHAA) to keep an emotional support animal despite her association’s restrictions.

The case of Carolyn Hoffman v. Leisure Village, Inc. of Stuart, Fla. actually involved two dogs. As to the first dog, Hoffman and her association ended up in litigation which resulted in a settlement agreement whereby the association allowed her to keep the dog, with the understanding that she would not get another dog after it passed away, and if she did get another one she would have to move from Leisure Village.

Upon the death of her dog in 2010, Hoffman was diagnosed with chronic depression and her psychiatrist recommended that she get another dog to support her emotionally. Her attorney made a request to Leisure Village for an accommodation under the FHAA, but the request was denied. She got the dog anyway.

esupdog.jpgThe association then went back into court and asked the judge to enforce the settlement agreement. At the same time, Hoffman filed a complaint with the U.S. Department of Housing and Urban Development (HUD) claiming that she was wrongfully denied an accommodation of her disability under the FHAA, and her complaint was ultimately sent to the Florida Commission on Human Relations (FCHR) for investigation. Before FCHR could finish its investigation, the trial court ordered Hoffman to remove her dog from the association.

When FCHR completed its investigation three months later and found cause to believe that a fair housing violation had occurred, Hoffman first tried to file a claim in federal court, and then back in state court, claiming discrimination. The court dismissed her case, saying that she had waived her right to bring a new claim and all of the issues had already been decided in the case relating to her first dog.

The Fourth DCA found that the trial court did not even have the authority to decide Hoffman’s discrimination claim because while she had started the process of filing complaints with HUD and FCHR, FCHR did not even complete its investigation of the claim until three months after the court dismissed her claims. The court examined the law and found that Hoffman was required to exhaust the administrative process (i.e., filing a discrimination claim with HUD and having that claim investigated to conclusion) before she was entitled to file a lawsuit. The appellate panel reversed the dismissal of her discrimination claim, thereby allowing her to pursue it back in the trial court.

The lesson to be learned from Hoffman and Leisure Village is even when it appears that a fair housing dispute has been resolved by agreement, it is not necessarily over . . . “until it’s over.”

One of the more memorable service animal disputes that my fellow community association attorneys at our law firm and I recall learning about was chronicled recently in a report by WPTV- NBC Channel 5 News in Palm Beach County. The station’s story had many of the most common elements found in service animal disputes: a pet owner insisting that her association must allow her to keep the family pet because the pet helps alleviate anxiety disorders, and an association that is demanding removal of the animal because it is expressly prohibited by the association’s governing documents. The key difference in this case is that Wilbur, the animal in question, is a 65 pound pot-bellied pig.

The dispute is taking place in a suburban Lake Worth community, and it appears to have all of the makings for one that will be headed for litigation due to the obstinacy being displayed by both sides.

“I didn’t know it was a problem until we got a violation letter,” explains the owner, in the station’s report. She says that her association is trying to force her to get rid of her pig, and she vows that she “will fight, fight, fight with everything I have to keep this animal here.”

pbpig.jpgShe explains that she is determined to keep Wibur because of what he means to her two kids, and she has produced documents for the association demonstrating that both of her children have been previously diagnosed with ADHD and one of them with Asperger Syndrome. The owner indicates that she has even had Wilbur trained and registered in an animal assisted therapy program at the Humane Society of Broward County. She insists that “he helps them come out of their shell.”

The report goes on to explain that the association’s rules clearly state that “only common household pets” and “no livestock” are allowed in the community. It notes that lawyers representing the association said in a statement that they are trying to verify the medical conditions of the children in order to verify whether Wilbur qualifies as a service or emotional support animal.

“A pot-bellied pig is not a common animal, but it’s a lot more common than you think,” says the owner. In fact, the Palm Beach County Commission has voted to no longer consider pot-bellied pigs as “livestock,” but they also decided that it would be up to specific associations to determine whether they can be allowed as pets.

Pursuant to Florida’s Fair Housing Act, an association is required to make reasonable accommodations in its rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person an equal opportunity to use and enjoy a dwelling. The failure to make an accommodation when required could result in a discrimination complaint being filed against the association. However, while the Fair Housing Act requires that an association may have to allow a resident to keep what would otherwise be a prohibited pet, such pet cannot become a nuisance to other residents.

It will be interesting to see how this case turns out. Both sides appear to have strong arguments to support their respective positions, and there is no doubt that it would be reasonable for a court to find that pigs are not common household pets. However, because pot bellied pigs are becoming increasingly common as pets, perhaps the time has come for associations to consider amending their governing documents to specify the types of animals that are allowed. Otherwise, they too may one day face the possibility of difficult and costly litigation to determine the outcome of a pet pig as a service animal in their community.

Click here to see the report in the WPTV Channel 5 website.

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