Americans with Disabilities Nightmare

I know this article is a bit lengthy but it addresses many questions that we get here on a regular basis. Well worth the read especially the LAST PARAGRAPH

The Americans For Disability Act
“A Horror Story”
by Martin Lee, Esq.

Many homeowners associations are not aware that the California and Federal fair housing legislation applies to them and often those homeowners associations that are aware of this are not aware of the seriousness of complaints of violations by their members or those members’ renters. The recent published opinion of the Ninth Circuit of the United States Court of Appeals in the case of Dubois v. Association of Apartment Owners of 2987 Kalahana (filed July 13, 2006) brought to the fore a virtual horror story and the commendable conduct of a condominium association in keeping its head (and avoiding liability) in the midst of such a nightmare.

The Dubois case originated in Hawaii but, as a Ninth Circuit ruling, it applies in California as well. In the Dubois case, a John Dubois owned a condominium in a condominium project on Waikiki and lived there together with a Timothy Prindable (Prindable was not an owner). The governing documents for the condominium project prohibited any animals. (Unlike in Hawaii, California’s Civil Code §1360.5 requires homeowners associations to permit the keeping of at least one pet if the governing documents for that association have been adopted, amended or otherwise modified on or after January 1, 2001).

The nightmare began, as discussed by the Ninth Circuit, at the beginning of 2000 when Dubois brought home a dog (which he and Prindable named “Einstein”). In order to try to evade the condominium project’s pet ban, Dubois and Prindable submitted to the condominium association and its management company doctors’ letters recommending that either Dubois or Prindable be permitted to keep the dog for “medical reasons”. The condominium association and its property management company requested more information from the doctors but the doctors never replied and Dubois and Prindable argued that they did not have to disclose anything more about these “medical reasons”. Finally, Dubois and Prindable presented letters from some doctors and a “behavioral medicine specialist” saying that Prindable suffered from depression and that he would benefit from the presence of this pet.

From the very beginning the condominium association did the right thing, it gave Dubois and Prindable temporary permission to keep the dog pending its review of the matter. Nonetheless, before the condominium association did anything to try to evict the dog and ostensibly while it was still reviewing the matter and its temporary permission was still in effect, Prindable filed a housing discrimination complaint against the condominium association and its management company with the United States Department of Housing and Urban Development (“HUD”). HUD then referred the complaint to the Hawaii Civil Rights Commission. (In California the same procedure applies and same would be referred to the California Department of Fair Employment and Housing.) After the filing of the complaint by Prindable, the condominium association again did exactly the right thing and advised Prindable and Dubois it would continue the “temporary stay” until the matter was decided by the Civil Rights Commission.

Matters deteriorated and Dubois and Prindable filed a Federal lawsuit suing the condominium association and its officers and directors and the management company claiming discrimination and retaliation in violation of the Federal Housing Act and its Hawaii counterpart, the Discrimination in Real Property Transactions Act. They also asserted claims for intentional infliction of emotional distress, negligent infliction of emotional distress, defamation, invasion of privacy, breach of fiduciary duty, and abuse of process and prayed for punitive damages and injunctive relief. Things deteriorated further and Dubois also stopped paying his condominium association assessments and the condominium association was forced to initiate foreclosure proceedings on Dubois’ condominium unit. Prindable moved out. Then during the pendency of the Federal proceedings, Dubois lost title to the unit through the condominium association’s foreclosure of its assessment lien. Dubois then refused to vacate the unit and subsequently had to be judicially ejected. As the Ninth Circuit noted:

“ . . . Dubois and the Condominium Association have been at war for years – they have been parties to at least four state court actions, in addition to administrative proceedings . . .”

The Ninth Circuit ruling completely vindicated the conduct of the condominium association, its officers and directors and its management company by pointing out very simply that, at every step of the way, it did the right thing: It accommodated the claims of disability by granting temporary stays permitting the dog to remain in the unit with Dubois and Prindable while their complaint was reviewed and processed. As the Ninth Circuit stated:

“Although the parties have argued various issues at length, there is a simple answer here. The Condominium Association never required [the dog] Einstein to leave and thus never refused to make the requested accommodation, which is one of the essential elements of the FHA claim. Dubois and Prindable kept Einstein from the day they brought him home in January 2000 until the day they vacated their unit in September. After Prindable requested an accommodation, the Condominium Association granted them a temporary exemption from the bylaw while it investigated and decided what to do. Although Dubois and Prindable made the investigation difficult, the Condominium Association did not force the issue. Instead, the Condominium Association, presumably out of patience, prudence, or a combination of both, left the temporary exemption in place and so advised Dubois and Prindable. Since the Condominium Association never refused to make the requested accommodation, plaintiffs’ FHA claim necessarily failed.”

After affirming the dismissal of all of the rest of Dubois and Prindable’s claims, the Ninth Circuit concluded by saying:

“Although humor can be found in these facts, this story is more tragic than comic. This litigation undoubtedly took a substantial toll on the individual parties and other persons connected with them and with this condominium project, not only in terms of time and expense, but also from the disharmony and aggravation that burdened their lives. Racing to the courthouse is not always the right approach. Albert Einstein was known not only as a genius but also as a peaceful and patient man. On conflicts large and small, he once remarked, ‘In the last analysis, every kind of peaceful cooperation among men is primarily based on mutual trust and only secondly on institutions such as courts of justice and police.’ Einstein’s owners would do well to heed that advice.”

The moral of this story is that homeowners associations need to be extremely careful every step of the way when dealing with their members, and this is especially true where claims under disability statutes are made. A simple dog story can end up blossoming into a nightmare for everyone concerned. In the Dubois case, because the condominium association took the right approach from the very beginning, it prevailed at the end of a long, nightmare-riddled night.

I am glad that they didn't back down. The Board should have countered that the residents were abusing the judicial process.

The thing is that the residents knew that they wouldn't win and went nuclear to try and intimidate the Board. At least under the ADA for an animal to be considered a service animal it must receive specific training to relieve a specific issue. A hearing dog for instance is trained to alert the owner to certain sounds.

But a dog to help relieve symptoms of depression does not qualify.

the only mistake they made was that they should have asked how the animal assisted the owner. Relieving some unknown medical symptom is not enough information.

I don't have an opinion either way...... but I did just find this:

Tenants With Special Needs

The law may recognize this. California law, for example, requires landlords to make "reasonable accommodations" if they're necessary to let someone with a disability use and enjoy a dwelling. A California couple who suffered from severe depression asked their homeowners' association for permission to keep a small dog in their condo. According to doctors' testimony, the dog had a marked therapeutic affect, especially for the husband, who had been permanently injured in a serious car accident several years before. The association refused, but the state's Fair Employment and Housing Commission ruled that keeping the dog was a reasonable accommodation, and a state court affirmed that decision.

http://www.ada.gov/qasrvc.htm

2. Q: What is a service animal?

A: The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.

Now we have two specific reason why the dog to relieve depression is not a service animal.
1) Depression is not considered a disability
2) The dog must be individually trained to provide assistance. Simply being a loving compassionate being does not make a service animal.

It should be noted that "therapy dogs" have repeatedly been determined to not qualify for protection.

The note from the doctor was most likely vague for a reason. There are legal definitions for disability. The doctor can incur liability for declaring a disability that does not meet those definitions.

There is entirely too much effort these days to get over on the rules. And I applaud any person who stands up and says no to such. It is a disservice to the people who have a real disability and depend on service animals. Accommodations for those abusing the system cost us too much and generate backlash against those who do need them. Allow the dog for depression and every person wanting a dog will get a mild case of depression. Heck, the thought of being without my dog is depressing. (But then again I chose a place where the dog is allowed instead of foisting her presence on those who don't want to be near dogs.)

I totally agree that the association did an outstanding job. I just believe differently and have read many "cases" times where animals were allowed for "theraputic" reasons. Our HOA doesn't have any areas that would be covered by the ADA such as a clubhouse etc., so I was using the FHA. I do understand the difference between ADA and FHA.

I have no idea where you are going with this or for what point it is intended.

By the way, thanks to Donna for articulating what I was saying in my head. I'm unaware of any regular poster on this site who poo-poo's disability laws in conjunction with HOAs.

And big kudos for Kirk's posting, too, on "service" animals.

"Depression is not considered a disability"

Whoaaaa...where did you learn this? Clinical depression CAN BE included under the ADA. It depends on to what extent the depression impacts a person's life.

Also, I took this directly from an ADA flyer specifically answering questions about assistance animals - "Businesses may ask if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special
ID cards for the animal or ask about the person’s disability". Now, I don't know exactly how this applies ("business" vs HOA), but it appears that assistance animals DO NOT need "approved" training.

Just my $.02.

Brian,

I believe it was you who thought that only condos, apartments etc. fell under the Fair Housing act. Maybe I misunderstood your earlier posts. Our single family detached HOA is being investigated by HUD for violating the FHA and it has nothing to do with the ADA or ADAAA for public accomadations. You are correct that there are alot more ways to be considered disabled. Mental illness, fertility issues, hearing impairment, autoimmune disorders and probably even allergies to name a few.

No need to apologize I wasn't sure if you referencing ADA or FHA with regard to HOA's.

Here's a few cases from the HUD site where a charge of discrimination has taken place regarding pets.

http://www.hud.gov/offices/fheo/enforcement/09_HUD_v_405East82ndStCoop.pdf

http://www.hud.gov/offices/fheo/enforcement/RC08/08_HUD_v._Lucas.pdf

http://www.hud.gov/offices/fheo/enforcement/RC08/HUD_v_75MainAveOwnersCorp_08.pdf

I just think the associations don't need the grief of the DOJ breathing down their back. I don't know if their pockets are deep enough to contend with the government and some D&O insurance doesn't cover payment for civil fines, punitive damages etc. They will only pay defense costs.