Claiming Service Animal Status After a Condo Board Refuses to Change a No-Pets Policy Requires Thinking Strategically

Soon after I began doing research on service and support dog access law I realized that by far the largest category of legal decisions are disputes over dogs in apartment buildings and other housing environments where there is a no-pets policy. It makes sense that these cases often lead to litigation. If a handicapped person tries to take a service dog into a restaurant and is refused, refusal may lead to a lawsuit, but people don’t always want to take the time to enforce their rights. A few letters will often change the restaurant’s policy and perhaps lead to some compensation, assuming the refusal wasn’t based on the fact that the dog really wasn’t a service dog to begin with. The same applies to transportation. People put up with a lot. But you can’t be so flexible about where you live. If your dog is a service or support animal, you’re going to have to fight to keep it with you. See my recent article on this: Service and Support Animals in Housing Law, by John Ensminger and Frances Breitkopf, GP/Solo Magazine (July/August 2009).

A recent federal district court case from Florida shows one type of housing case that seems to happen a lot. In Hawn v. Shoreline Towers Phase I Condominium Association, Inc., 2009 WL 691378 (ND Fla. 2009), Davis Hawn bought a condo in 2004, knowing the Association had a no-pets policy. Nevertheless, he obtained a Labrador Retriever named Booster about a year later and proposed to the condo board that it change its policy to allow pets. He felt that Booster would win everyone over. He did not at first claim that Booster was a service animal and the dog was a puppy when Hawn acquired him in any case. The Association took no action against him, but did not change its policy, and in 2006, he wrote another letter, now claiming that he was disabled and that Booster had been certified as a service animal. Hawn asserted that he had trouble walking and that the dog helped him with this and in overcoming the trauma of an attack that he suffered from the stepson of a friend. He said that Booster brought and removed his shoes and socks, opened the refrigerator and brought him water, pulled him out of his chair, and brought him his phone in case of an emergency or panic attack. The dog also comforted him after panic attacks. A psychologist wrote a letter for Hawn prescribing a service animal to help him with his “emotionally crippling disability.” The psychologist later admitted, however, that Hawn wrote much of it for him. Another letter was from a chiropractor who recommended that Hawn get a support animal to assist him with his movement disability. Hawn also wrote most of this letter for the chiropractor to sign. The court found the letters essentially useless as evidence.

At an Association board meeting, Hawn asked to speak to the board concerning his request to keep his “service animal.” The request was granted and Hawn told those present about his need for the dog. Sometime after the meeting, the general manager of the condo told Hawn that the board’s attorney needed more information, including documentation to support Hawn’s disabilities and the qualifications of the psychologist and the chiropractor. Hawn did not respond to this letter. The second letter, reproduced in the court’s decision, displays an understanding of the housing law regarding service and support animals. Hawn should probably have realized that he was being asked to conform his claim to legal requirements, but he ignored this letter as well. When Hawn was served with an eviction order, he filed the lawsuit.

The defendants—the Association and members of the board—moved for summary judgment. Hawn effectively argued that the defendants had violated the Fair Housing Act by refusing to make a reasonable accommodation. The district court reviewed federal and state law regarding reasonable accommodation, and concluded that Hawn had failed to establish that he was disabled or handicapped within the meaning of the FHA, or that the defendants knew an accommodation was necessary to provide him an equal opportunity to use and enjoy his dwelling. The court put the blame for this on Hawn, who had ignored both letters from the board. Hawn proceeded to get more evidence for his claim, some of which was much better than the two initial letters, but the court said he was too late and that the only relevant time period for deciding if Hawn was disabled was when the alleged discrimination occurred in September 2006 when the board finally denied Hawn’s request to keep Booster in his unit. Hawn should have responded to the board’s letters and gotten his information together at that time.

In considering the summary judgment motion of the condo, the court held that “no reasonable juror could conclude that the board knew the plaintiff was handicapped when it made the decision to deny his request.” The court saw this case as analogous to Prindable v. Association of Apartment Owners of 2987 Kalakaua, a case decided by the federal district court in Hawaii where a tenant had also ignored requests from an apartment owner for more information. The Florida district court concluded that there was no evidence that the Association would have refused to accommodate Hawn had he provided adequate documentation and granted summary judgment. Hawn was out of luck. The lesson of the case, for Florida and elsewhere, is that if a tenant obtains a dog that is not a service dog but trains it to become one, he or she should pay attention to the details of establishing the animal’s legitimate status, and should be cooperative with the landlord in supplying necessary information. A sympathetic court might overlook some lapses, but no one should ever bank on judicial benevolence.

The decision of the Northern District of Florida in Hawn was affirmed by the 11th Circuit. 347 Fed.Appx. 464, 2009 WL 3004036 (2009).