Tuesday, November 11, 2014

Landlord Okays Service Dog, but Balks at Fenced-In Area for Dog’s Exercise

The federal district court for Oregon has determined that a case involving a tenant’s need for accommodations in order for her to care for a service dog must go to trial, that it cannot be resolved on cross motions for summary judgment.  Although there was some question as to the adequacy of the dog's training, the major issue concerned the tenant’s desire to put a fence around her patio and part of the common lawn of Rosewood Homes, arguing that this is the best way for her to let the dog out to relieve herself and get some exercise. 

The court analyzed the law of reasonable accommodation as it applies to the service dog user’s ability to care for a dog.  Since most court decisions in this area have concerned whether a tenant can obtain or keep a dog at all, the focus on this tenant’s request for a fence makes the case important for anyone seeking structural modifications or other accommodations to better care for a service animal in a housing context.  There will be a full trial on the unresolved issues in 2015. Oregon Bureau of Labor and Industries ex rel. Mayorga v. Housing Authority, 2014 US Dist. LEXIS 146671 (DC Or. 2014)

Tenant Seeks Service Dog

In 2005, Joy Mayorga, who suffers from degeneration of the lumbar disk, facet osteoarthritis, and fibromyalgia, asked permission from Housing Authority of Douglas County, which owns Rosewood Homes, where she lives, to obtain a service dog that would exceed the Authority’s weight and size restrictions for pets.  Mayorga’s request stated that she would “try and get a dog that meets the physical, mental, and also the temperament and attitude requirements necessary for the dog to be trained as a service dog.”  She included a letter from her doctor, Fred Black, MD, stating that “living and caring for a dog would be beneficial for Ms. Mayorga’s health.  It is my recommendation that she have a large, very sturdy dog that is at least eight months old.”  The Authority authorized Mayorga to have a dog for medical reasons. 

Mayorga’s condition confines her to bed five to seven days a month, sometimes consecutively.  Rosewood Homes consists of single-story duplex residences separated by common grassy areas shared by all residents of the complex.  Behind each unit is a concrete patio, approximately 9 x 20 feet, which is accessed by a sliding glass door.  Several months after making her initial request, Mayorga put up a fence around her patio, which the Authority directed her to remove.  Mayorga had advised the Authority that she was going to place some lattice on the corner of her patio to support flowers but, according to the Authority, had specifically stated that she was not fencing in her patio.  She more specifically requested a fence after that, but the request was denied. 

In 2008, Mayorga requested permission to bring a dog that might be trained to be a service dog into her home.  The dog, an American Staffordshire Terrier, one of two breeds called a pit bull, was five years old and weighed about 60 pounds, but had not yet been trained.  Mayorga had been a dog trainer, but not a service dog trainer.  A representative of the Authority, Janeal Kohler, asked for verification of vaccination and licensing, and then approved Mayorga’s request to bring the dog into her home. 

Mayorga then asked to fence off a kennel area behind her unit where Asia could exercise and relieve herself.  In one document, Mayorga said the fenced area would be 9 feet by 35 feet, but in another an area of 20 feet by 36 feet.  Most of the fenced area would be the patio but there would be “a bit of grass area” for the dog.  The Authority said that Mayorga could use a portable dog kennel, 3 feet by 16 feet in length, to be taken down when not in use and not attached to the building or concrete.  Mayorga responded that this would not provide sufficient exercise space for the dog and would be prohibitively expensive.  She also said that the dog, when tethered outside, another possible way of giving the dog exercise suggested by the Authority, was teased and approached by other people.  Mayorga asked that her initial request be reconsidered.  Kohler said that Mayorga’s proposed kennel would infringe on common space and suggested instead that she consider a dog walker, a more suitable assistance animal, or a temporary tether. 

Medical Release Request and Doctor’s Letter

At this point, Kohler requested that Mayorga sign a medical release so that the Authority could contact Dr. Black, but Mayorga declined to sign it, saying it was unlawful.  She also got a letter from a veterinarian and a manager of a training group stating that Asia needed an exercise area where she could be off leash.  Kohler agreed to provide Mayorga with a more carefully restricted medical release form.   Meanwhile, Dr. Black provided the following letter in support of Mayorga’s fencing request:

My patient Joy Mayorga, has given me permission to share the following information with you. Ms. Mayorga explained to me that she needs this letter from me because she has requested to be allowed to fence off an area for her service dog (which I had previously prescribed for her) thus allowing the dog to go outside on its own.

Because of her disability she has days when she can barely walk. Days when she even has to spend most of her day in bed. There is no way to determine when she will have such days nor how long they will last. At times this situation will interfere with her ability to take the dog out on a leash, even just long enough for the dog to relieve itself. She also has other health conditions that would be negatively affected by not allowing the accommodation she is requesting. All in all, I feel the best solution for Ms. Mayorga to keep and maintain her dog, is to allow her to be able to just open the door and let the dog out.

With regard to the dog's health, I can only say that because of the slow rate of Ms. Mayorga's walking, the dog will receive very little exercise. Other th[a]n that I am not in a position to speak to the dog's well being -- only Ms. Mayorga's. For her sake, I hope something can be worked out that will allow Ms. Mayorga to keep her service dog.

This time the request was denied because of (1) Mayorga’s refusal to provide written permission for physician verification, (2) a temporary tether was all she needed, (3) she could get an animal walker, and (4) there was risk in the proposed enclosure to third parties.  Kohler also said that two employees of the Authority had complained that Asia had behaved aggressively towards them.   A more senior official at the Authority indicated that Dr. Black’s letter obviated the need for the release form. 

As a side note, Dr. Black’s correspondence fits within the recommendations Dr. Thomas and I made in our article in the Journal of Forensic Psychology Practice concerning how medical professionals should write letters for patients with service and support animals.  The letters were specific to the patient, not canned documents obtained from a website, and considered how the issues presented relate to the patient’s condition. 

Mayorga and Oregon Bureau File Complaints

In 2010, Mayorga filed an administrative complaint against the Authority with the HUD and the Oregon Bureau of Labor and Industries.  The latter agency investigated the complaint and filed formal charges against the Authority and three individuals under Oregon Revised Statutes 659A.145 (Discrimination Against Individual with Disability in Real Property Transactions Prohibited) and 42 U.S.C. 3604 (Discrimination in the Sale or Rental of Housing and Other Prohibited Practices).  The Authority exercised its right to have the case heard in a state circuit court. 

In 2011, the Authority’s Board of Commissioners approved the Authority’s director obtaining bids for a possible vinyl fence and some discussions were held with a contractor.  No fence was put up, however, and in 2013 the Oregon Bureau filed a complaint against the Authority in state circuit court, which the Authority removed to federal district court.  Mayorga intervened as a plaintiff.

Federal Court’s Analysis

Judge Michael J. McShane, U.S. District Judge, observed that a “service animal, like any other assistance device, may require an additional accommodation to enable its effective use.”  Thus, an employer may be required to provide a ramp or widen a door for wheelchair travel.  The request to fence off a kennel area was such a request for an accommodation, which is to be granted if necessary to afford Mayorga the equal opportunity to use and enjoy her dwelling and if it is reasonable under the Fair Housing Act.  To prove necessity, Mayorga had to show that but for the accommodation, she would likely be denied an equal opportunity to enjoy the housing of her choice.  Giebeler v. M&B Assocs., 343 F.3d 1143 (9th Cir. 2003).

The facts indicated that Mayorga was sometimes bedridden for days and could not use the tether, presumably a long leash or a rope, as a substitute for a kennel, and in any case putting the tether on caused her pain.  There were some inconsistencies in the timing of events, however, in that Mayorga appeared to have attempted to erect a fence in the same general location even before the need to have it for the dog arose and she had provided the Authority “with an evolving explanation of her need for the accommodation.”  The judge also found some haziness in the record that made it impossible to determine whether the Authority had made improper medical inquiries regarding Mayorga, given that the Authority had the right to request information necessary to evaluate Mayorga’s disability-related need for accommodations, particularly when Mayorga’s condition was not necessarily readily apparent or already known to the Authority. 

Is Asia a Fully Trained Service Animal?

Judge McShane described Mayorga’s use of the dog as by 2014 involving the following:

“Mayorga's main physical impairment is pain caused by her lumbar disk degeneration and facet osteoarthritis…. Mayorga's pain is aggravated by bending, stooping, and walking…. Asia, Mayorga's service animal, is primarily used for stability support within her home. For example, Asia assists Mayorga in traveling up and down stairs, and walks alongside her in case Mayorga loses her balance…. If Mayorga falls, she is able to push off and/or be pulled by Asia to get off the floor…. Asia generally does not accompany Mayorga to the grocery store, doctor's office, church, or her great grandchild's school…. Mayorga does, however, infrequently walk Asia on a leash around the block, to the mail box, and to the office.”

Supporting and helping someone with mobility impairments stand after a fall fit within the functions of a mobility-impairment service animal, but it is not clear why Mayorga did not need the dog’s assistance in performing many errands.  Also, the judge found himself “unable to make any type of credible finding as to the adequacy of Asia’s training.”  It is not clear if Asia’s functions specific to Mayorga’s condition were not fully established, or if the judge is referring to Asia’s training with regard to being in public.  Mayorga initially described Asia as a “possible service animal,” and in 2008 the Authority had apparently received complaints of aggressive behavior from the dog, possibly indicating that some level of obedience training was still needed.  Is Asia’s potential aggressiveness still a problem?  The difficulties described in using a tether might suggest that Asia’s training in recall was not complete. 

The judge may have been concerned that it would be inequitable to order accommodations needed in part because the dog was not a fully trained service dog.  This issue usually arises with emotional support dogs that provide comfort but are not trained to do work or perform tasks specific to a disability.  That does not appear to be the case here.  Rather, the court may be considering what limits might be appropriate in an order covering a dog trained to perform tasks or do work related to a disability but not trained on some basic obedience commands.  The use of a dog walker for giving the dog exercise might be appropriately considered in such a situation.  


Judge McShane determined that a trial was needed “because a fuller record will afford a more substantial basis for decision.”  It will be important to tailor injunctive relief to the conditions obtaining at the time of the trial.    

This is not a case where a landlord adamantly refused to consider a valid request for a service animal and declined to even discuss the matter with the tenant.  The Housing Authority seems to have rethought some of its positions on its own, acknowledging for instance that its first request for a medical release was too broad.  The Authority seriously looked at the possible fencing of part of the area behind Mayorga’s unit. The court correctly saw the record so far developed as inadequate to assure a fair ruling. 

As of this writing, a jury trial on the matter is scheduled before Judge McShane on January 27, 2015. It is to be hoped that the judge will write an opinion on whatever final resolution is reached at trial.  

Thanks to Leigh Anne Novak for valuable comments. 

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