Articles Posted in Pets and Service Animals

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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Several of my colleagues and I have written extensively in previous articles in this blog about the issues surrounding service dogs in communities that maintain strict restrictions against pets. We have discussed how many of these communities have been forced to contend with residents whose requests for exemptions for service dogs have been highly questionable and, in some cases, even complete shams. However, a recent case that was covered in an article in The Miami Herald illustrates the dangers that associations – and their board members – may face if they grossly miscalculate and overreact to a request for a service dog from an individual who is obviously disabled.

In Sabal Palm Condos. of Pine Island Ridge Ass’n v. Fischer, unit owner Deborah Fischer suffered from multiple sclerosis and was confined to a wheelchair, so she acquired Sorenson, a trained service dog. The association’s pet policy only allowed for a cat or fish, or another pet weighing less than 20 pounds and only with prior permission of the board. Fischer asked the condominium association to accommodate her disability by allowing her to keep Sorenson, who weighs more than 20 pounds.

The association responded by requesting copies of Fischer’s medical records from all of her healthcare providers who diagnosed or treated her disability, which she claimed made a service dog necessary. Sabal Palm also requested that she provide “all documents relating to the nature, size and species of dog, as well as all documents regarding any training it received.”

sdog.jpegFischer provided the association with a letter from Sorenson’s trainer describing the tasks he was trained to perform, and she enclosed a photo of herself in her wheelchair with Sorenson. However, this was not good enough for the association, and Sabal Palm went on to request additional documentation, which Fischer provided, that made her disability and her need for a service dog extremely evident and clear.

Shockingly, the association responded by filing a lawsuit against Fischer and her husband seeking a declaratory judgment that it need not accommodate Fischer by allowing her to keep Sorenson based on the fact that the dog was over the 20 pound weight restriction. Fischer countersued claiming that the association and its president discriminated against her when it refused to accommodate her request to keep Sorenson.

The court found that Sabal Palm violated the federal Fair Housing Act (FHA). The judge’s 30-page order states that the defendant’s disability was so obvious and her need for a service dog had been so clearly established that the association failed to reasonably accommodate her disability as required by federal law.

“Sabal Palm got it exactly — and unreasonably — wrong,” wrote U.S. District Judge Robert N. Scola, Jr. That the condo association “turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society. And it does a disservice to people like Deborah who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA,” Judge Scola concluded.

In addition, the court also found that the association’s president was personally liable to Fischer, as “[i]ndividual board members or agents such as property managers can be held liable when they have personally committed or contributed to a Fair Housing Act violation.”

After Scola ruled in the Fischers’ favor, their attorney negotiated a $300,000 settlement with Sabal Palm.

The lessons from this case should be very clear to associations and their directors. Residents who are obviously visibly disabled and establish that they need the assistance of a service animal should be accommodated. Unfortunately, abuse by individuals without disabilities masquerading the need for fake service animals has lead many associations to distrust applicants to the detriment of those who are truly disabled. However, associations that turn to the courts to confirm their decision to deny accommodations in such cases without using common sense or listening to the advice of highly qualified and experienced legal counsel can bring significant legal liabilities and expenses to their communities.

Doggie disputes are a common issue for many owners and board members in South Florida condominium communities. In today’s housing market, many people who were previously living in a single-family home are now finding themselves living in condominiums or deed-restricted communities with their pets. Subsequently, association boards are now facing more situations involving dogs and dog owners in their communities. However, by taking a new look at their policies concerning “man’s best friend,” associations can better serve their community by adopting policies specifically pertaining to the board’s ability to quickly and fairly deal with any dog-related issues that may arise, including how to deal with what some have called “dangerous dogs.”

Most governing documents have provisions concerning dogs, but many lack the specificity required by boards in order to remove the dogs should they be determined to be a danger to the community. By adopting a policy that provides when a dog may be determined to be a nuisance and must be removed, both boards and pet owners are better served by having specific parameters to assist them when it comes to incidents such as dog bites, lunging, growling, and intimidating behavior or aggression toward other residents or dogs in the community. Additionally, more and more condominium and HOA documents are specifically identifying certain breeds of dogs that are deemed to be dangerous and prohibited in the community. Typically these are the Doberman Pinscher, Pit Bull and Rottweiler breeds. (The origination of these lists of dangerous dogs goes back to homeowner’s insurance policies.) Some documents use a weight-limit maximum for pets, which also serves to prohibit most of the larger breeds of potentially dangerous dogs.

Any policies adopted by a board should specify the type and number of incidents and/or complaints that can be used by the board to determine when a dog is a nuisance (or perhaps dangerous) and must be removed from the property. ddog.jpg Most dog owners know and understand their own dog’s individual personality and tendencies, so owners will be better equipped to use their own judgment to mitigate potential incidents that are detailed in the rules, such as waiting for the next elevator if another dog owner is already in it with their pet. Also, by establishing in the pet policy the specific number and types of incidents that can be considered aggressive behavior, a board will be able to make uniform decisions when it comes to all dogs in their community – regardless of size or breed – and avoid any arbitrariness in their decisions that could result in a successful challenge by an owner before the Division of Condominiums.

Another rule that associations should consider is requiring residents who own dogs to maintain a homeowner’s or renter’s insurance policy to insure against any dog incidents that could occur in or around the condominium property. Associations should also consider the creation of a rule that provides that dog owners agree to indemnify and hold the association harmless from any liability resulting from incidents involving a dog.

The pet policies and restrictions in community association governing documents and rules tend to vary greatly depending on the individual property and the prevailing mindset of the community. Community associations that wish to make their property user-friendly for dog owners who abide by the rules should make every effort to enact clear and detailed rules and pet policies that make sense for their community and eliminate the potential for arbitrary enforcement.