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06/28/12 It's The Law: Condo Can Still Bar Dogs Under Fair Housing Act

Question:

Our condominium prohibits pets. One owner got a dog and claimed she was allowed to keep the dog for emotional support under the Fair Housing Act. Some of the other owners found out about it and now they have dogs, claiming the same reason. Other owners are demanding we enforce the rules. Does the Fair Housing Act require we allow a dog when the owner claims it is needed for emotional support?

Answer:

Florida and the Federal government both have Fair Housing Acts. Both Acts make it illegal to discriminate in sale or rental a dwelling because of handicap of the buyer or renter. Discrimination includes refusing to permit reasonable accommodation in rules or policies, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling. The Florida statute incorporates identical language to the Federal law.

It has long been established that service animals must be allowed. The best known is a dog to accommodate a blind person. Hearing dogs for the deaf are another well established category. More recently, the category of companion animal evolved in which a person who is physcologically handicapped owns a dog that helps the owner deal with his or her psychological handicap.

Allowing a companion animal can be a reasonable accommodation under the statutes. But, in many cases the owner is merely claiming a need for the animal as a ruse to avoid pet restrictions. They even go so far as to get their friendly doctor to write a "prescription" for the pet. And, a cottage Industry has evolved under which companies will certify a dog is a companion pet; provide a certificate, collar with designation, ownership card and the like without requiring any special training of the pet.

While it may be understandable that people love their pets and want to keep them with them, falsely claiming the pet must be allowed under the Fair Housing Act can prove unsuccessful and expose the owner to attorney's fees and costs of the condominium enforcing its rules. That was the result in the recent case of Sun Harbor Homeowners Association, Inc. v. Bonura. In that case, Bonura owned a townhouse in Sun Harbor. His fiancé and her dog lived with Bonura.

Sun Harbor filed suit to enforce its declaration, which prohibited the dog. Bonura counterclaimed that his fiancé suffered from a disability and was entitled to a reasonable accommodation for the use of an emotional therapy dog.

Sun Harbor proved at trial that they had provided notice to Bonura that the dog was in violation of the declaration and must be removed. Bonura first denied, but later admitted a dog was living in his town house. He claimed it is was a registered service dog needed to assist his fiancé with an unspecified disability. Bonura's letter included a "registered service dog certificate," purchased on line from "RegisteredServiceDogs.com." The association advised Bonura that any request for accommodation would have to be placed on the association's agenda at the association's next board of directors meeting. At that meeting he would have to:

  1. Demonstrate that his fiancé suffers from a medical disability or handicap, unless it was visible;
  2. Demonstrate how the dog can or will reasonably accommodate the disability;
  3. Demonstrate that the dog has special skills or training to accommodate the handicap; and
  4. Demonstrate how the special skills and training of the dog set it apart from an ordinary pet.

Bonura never asked to be placed on the board meeting agenda.

Bonura's fiancé testified that she bought the dog to provide emotional support for depression and anxieties she suffered after an automobile accident. She also presented testimony from a nurse friend and a physciatrist (who did not meet the fiancé until four months after the lawsuit was filed) who opined that the dog was required because of her depression and anxiety. The trial judge ruled in favor of the fiancé. Sun Harbor appealed.

The Appellate Court reviewed the Federal Act. The Act defines handicap as:

  1. A physical or mental impairment which substantially limits one or more of such person's major life activities;
  2. A record of having such impairment; or
  3. Being regarded as having such impairment.

The court noted that Federal regulations interpret physical or mental impairment to include mental or physcological disorder and emotional distress. The regulations interpret "major life activities" as functions such as caring for oneself, performing manual tasks such as walking, seeing, hearing, speaking, breathing, learning, and working.

The Appellate Court concluded that the association was within its rights to require a request for accommodation be considered at a board of directors meeting and that the owner had never made such request.

More importantly, the court concluded that the medical testimony at trial was insuffient to establish the fiancé suffered from a handicap as defined by the Federal Act. There was no evidence indicating any substantial limitation on one or more of the fiancé's major life activities nor was there evidence to establish necessity of the accommodation. Sun Harbor won its appeal.

If your association wants to enforce its pet restrictions, it would be well advised to review the Sun Harbor decision as both a procedural and substantive guide. It should also retain an attorney experienced in dealing with the companion pet issue. The Sun Harbor case makes it clear that merely claiming disability and need for a pet is insufficient to require an exception from the rules.

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