OWNERS WANT THEIR "EMOTIONAL SUPPORT" DOG BUT COURTS BITE BACK

There is a huge debate going on about whether or not a “no pet” community association can actually remain “pet-free” simply because the governing documents say that it is.  Despite the fact that so many communities have language in their governing documents that specifically prohibit owners or renters from having a pet, pet owners have been striking back with notes from their doctor or family therapist, saying that they need the animal as an “emotional support” animal and that they are allowed to keep the animal pursuant to the Federal or Florida Fair Housing Act.

On June 13th, the 4th District Court of Appeal issued an opinion in  Sun Harbor HOA v. Bonura  where the fiance of an owner claimed the need for a dog due to a car accident suffered years earlier.  In support of the request to keep the dog, the fiance’s initial letter included a “Registered Service Dog Certificate” purchased online from “Registered Service Dogs.com”  To tell you how ridiculous these websites are, I once registered a dog named Pluto for his owner Mickey Mouse and after paying the fee, my printer spit out a certificate.

The association asked the fiancé and owner to prove at a Board meeting the following:

    1. demonstrate that the fiancé suffers from a medical disability or handicap, unless the disability or handicap was visible, and they indicate that any written information provided by the resident would not be copies or shared and would be returned after viewing;
  1. demonstrate how the service animal can or will reasonably accommodate the disability;
  2. demonstrate that the service animal has special skills or training to accommodate the handicap; and
  3. demonstrate how the special skills and training of the service animal set it apart from an ordinary pet.

They showed up, apparently couldn’t prove what they needed to, and the Board denied the request.

 

This case winds up in trial.  In support of the fiancé and owner, two different medical doctors and a Registered Nurse testified.  One of the doctors testified that the fiancé did not have any substantial limitation on any major life activity and that he never prescribed a dog.  A psychiatrist testified that he first began treating the fiancé four months after the lawsuit was filed and he testified the dog was necessary because of her ongoing depression and anxiety, and that he saw her interact with the dog on 2 occasions.  The nurse testified that the fiancé uses a service dog to alleviate her physical and psychological disorders and that she noticed a marked improvement in the fiance’s condition after she purchased a dog.  The fiancé testified that as a result of her accident she had disabilities that prevented her from attending medical school, prevented her from playing piano and that her memory, coordination and balance has now suffered. She said the dog helped her with emotional support and her memory.  After hearing all of the evidence, the trial court judge ruled in her favor and held that she was entitled to keep her therapy dog as a reasonable accommodation.

 

The association then appealed and the case then went up to the 4th District Court of Appeal.  The 4th DCA addressed the initial letter that was given to the Board, which stated that the fiancé is a “qualified individual with a disability.”  The court noted that letter didn’t say how she is qualified, the limitations and disabilities she was suffering from, why she is entitled to the dog, or that the dog that occupied the residence was necessary to afford the fiancé an equal opportunity to use and enjoy the dwelling due to her disability, as opposed to the dog being just desirable and helpful. The court also said that the association was well within its rights after it received that letter, to place the issue on the agenda for a board meeting and to determine what would need to be demonstrated at that meeting.  The court found that the medical letters failed to establish she had a handicap.   The court even cited to another case that said a doctor’s letter identifying that the plaintiff suffered from a mental dysfunction that impaired his ability to work along with the plaintiff’s own contention that he suffered from depression and anxiety and had HIV were insufficient to establish a handicap.

 

The court reiterated that the federal act defines a handicap as — “a physical or mental impairment which substantially limits one or more of such person’s major life activites.  and “major life activies” is defined as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  The 4th DCA concluded that even the medical testimony at trial was insufficient to establish that the fiancé was suffering from a handicap because there was no substantial competent evidence indicating a substantial limitation on one or more of her major life activities.  In fact, it came out at trial that she was able to travel to and from work without the dog.  The court then concluded that the plaintiff simply failed to prove a case of disability discrimination and reversed the trial court.  Big win for the HOA.

 

A few days after that decision a federal court jury also ruled that a Hallandale condominium association did not discriminate against a 90 year old woman who was suffering from dementia, by denying her the right to move into the condominium with an emotional support animal.

 

 

These cases generally start out with a doctor writing a letter for their patient basically stating that their patient suffers from an emotional condition and that they feel better with an emotional support animal and therefore the condo should allow it.  As a good will gesture to their patient, the doctor often signs a form letter that the patient pulled off of the internet and that contains the right buzz words.  And that’s mistake number one for the doctor.  If there are any doctors listening out there right now, before you put your signature on that letter, you are on notice that you will be sitting in a deposition being asked to explain how you arrived at the conclusions in your letter.  You may be deposed about every sentence and every word in that sentence……………..and if the case goes to trial, rest assured that you are going to be explaining it all over again in front of a jury.  In the La Mer case, it became embarrassing very quickly for one of the doctors who obviously didn’t even read the letter before signing it.

KAREN: I’M GUESSING WE HAVEN’T HEARD THE END OF THESE TYPES OF CASES, BUT AT LEAST PLAINTIFFS AND THEIRE DOCTORS ARE NOW ADVISED TO THINK

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