I. Breed of Dog as Emotional Support Animal (ESA)
Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014). Appellee Ajit Bhogaita, who suffers from post-traumatic stress disorder (PTSD), filed suit against Appellant Altamonte Heights Condominium Association, Inc. ("Association") for violating the disability provisions of the Federal and Florida Fair Housing Acts, 42 U.S.C. § 3604(f)(3)(b) (“FHA”) and the Florida Fair Housing Act, when it enforced its pet weight policy (25 lbs.) and demanded Bhogaita remove his emotional support dog from his condominium. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than $100,000 in attorneys' fees. This court affirmed that decision finding that there was evidence that the Association constructively denied appellee's requested accommodation. In fact, the court opined, "Neither Bhogaita's silence in the face of requests for information the Association already had nor his failure to provide information irrelevant to the Association's determination can support an inference that the Association's delay reflected an attempt at meaningful review."
Chavez v. Aber, No. EP-15-CV-00068-KC, 2015 WL 4724807, at *6 (W.D. Tex. Aug. 8, 2015). Plaintiffs sought damages stemming from Defendants' refusal to accommodate Plaintiffs’ minor son's mental health disabilities by allowing Plaintiffs to keep a mixed-breed pit bull as an emotional support animal in their rented duplex. Plaintiffs asserted (1) housing discrimination under the Federal Housing Act (“FHA”), (2) unlawful retaliation under the FHA, (3) discrimination under the Texas Fair Housing Act (“TFHA”), and (4) unlawful retaliation under § 92.331 of the Texas Property Code. Defendants filed the Motion, seeking dismissal of the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), specifically alleging that, because the dog is part pit bull, “[a]s a matter of law, it is not a reasonable accommodation to keep [such] a dangerous dog on the premises.” The court disagreed, finding this specific assistance animal did not pose a direct threat where a veterinarian found no signs of aggression. The court found Plaintiffs had adequately pleaded all claims and denied the Defendant’s motion to dismiss.
Warren v. Delvista Towers Condo. Ass'n, Inc., 49 F. Supp. 3d 1082, 1089 (S.D. Fla. 2014). In its motion for summary judgment, Defendant argues Plaintiff’s accommodation request under the Federal Fair Housing Act (the “FHA”) to modify Defendant's “no pet” policy was unreasonable because Plaintiff's emotional support animal was a pit bull and pit bulls were banned by county ordinance. In denying the Defendant’s motion, the District Court found that changing a no pets policy for an emotional support animal was a reasonable accommodation under the FHA. The court also found that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice. However, in line with US Department of Housing and Urban Development notices, the court found genuine issues of material fact remained as to whether the dog posed a direct threat to members of the condominium association, and whether that threat could be reduced by other reasonable accommodations.
II. Clean-up or Care Responsibilities for Emotional Support Animal (ESA)
Woodside Village v. Hertzmark, 1993 WL 268293 (Conn. 1993) (unpublished). The question in this case is whether federal and state laws outlawing discrimination in housing prohibit the eviction of a mentally disabled defendant from his federally subsidized apartment because of his failure to comply with the plaintiff's pet policy. The plaintiff here had disabilities including schizophrenia and severe learning disabilities. The plaintiff-landlord allowed tenants to keep pets, but required pet care, which included walking the dogs in a designated area and requiring that tenants use a "pooper scooper" to clean up behind their pets. The tenant-defendant here does not dispute that he failed to comply, but claims the plaintiff-landlord, as a recipient of federal funds, failed to reasonably accommodate his disability. The court found that plaintiff-landlord did in fact accommodate the defendant-tenant's disability by either waiving the provisions of its pet policy or permitting the defendant to build a fenced in area for the dog in the rear of the defendant's apartment. The eviction here was not based on the fact that defendant-tenant possesses a dog, but on his "demonstrated inability to comply with the plaintiff's pet policy." This, said the court, put other residents' health, safety and comfort at risk..
III. College or University Housing and Emotional Support Animal (ESA)
United States v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 975 (D. Neb. 2013). This case considers whether student housing at the University of Nebraska–Kearney (UNK) is a “dwelling” within the meaning of the FHA. The plaintiff had a service dog (or "therapy dog" as the court describes it) trained to respond to her anxiety attacks. When she enrolled and signed a lease for student housing (an apartment-style residence about a mile off-campus), her requests to have her service dog were denied, citing UNK's "no pets" policy for student housing. The United States, on behalf of plaintiff, filed this suit alleging that UNK's actions violated the FHA. UNK brought a motion for summary judgment alleging that UNK's student housing is not a "dwelling" covered by the FHA. Specifically, UNK argues that students are "transient visitors" and the student housing is not residential like other temporary housing (migrant housing, halfway houses, etc.) and more akin to jail. However, this court was not convinced, finding that "UNK's student housing facilities are clearly 'dwellings' within the meaning of the FHA."
Velzen v. Grand Valley State Univ., 902 F. Supp. 2d 1038 (W.D. Mich. 2012). On March 30, 2012, Plaintiff and the Fair Housing Center of West Michigan (“FHCWM”) brought suit against Defendants, a university, alleging unlawful discrimination under the Fair Housing Act (“FHA”), Federal Rehabilitation Act, and Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”), for denying Plaintiff’s request to keep an emotional support animal in on-campus housing. All claims brought against the individual defendants were brought against them in their official capacities as university administrators. Plaintiffs sought both injunctive and compensatory relief. Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief can be granted. The District Court decided the following would be dismissed: (1) all claims under the PWDCRA against all defendants; (2) all claims for compensatory damages under the FHA brought against all defendants; (3) all claims for injunctive relief under the FHA brought against the institutional defendants; (4) all claims for relief under the Rehabilitation Act by the FHCWM; and (5) all claims for relief under the Rehabilitation Act by Plaintiff that depended on disparate treatment. The following claims remained: (1) Plaintiff and the FHCWM's claims under the FHA seeking injunctive relief from the individual defendants; and (2) Plaintiff's claims against all defendants for compensatory damages and injunctive relief under the Rehabilitation Act pursuant to the failure to accommodate theory.
IV. Common Area Access for Emotional Support Animal (ESA)
Stevens v. Hollywood Towers & Condo. Ass'n, 836 F. Supp. 2d 800 (N.D. Ill. 2011). Plaintiffs brought the instant suit contending that their Condo Board's refusal to accommodate the need for an emotional support animal forced them to sell their condo. The Defendants moved to dismiss for failure to state claims upon which relief could be granted. After finding that Plaintiffs were not entitled to unrestricted access for their dog despite a no pet waiver and after needing more facts to determine whether Defendants restrictions on Plaintiffs’ access to the building were reasonable, the District Court denied Defendants' motion to dismiss Plaintiffs' claims under the Federal Housing Amendments Act (FHAA) and the Illinois Human Rights Act (IHRA). The District Court also found Plaintiffs' interference or intimidation allegations sufficient to withstand a motion to dismiss. However, the District Court dismissed Plaintiffs’ nuisance claim because Plaintiffs had not contended that Defendants unreasonably used their own property to interfere in Plaintiffs' use and enjoyment of their home, but rather, contended that Defendants made rules that interfered with the Plaintiff's ability to use the common areas of the property as they wished. Plaintiffs’ intentional infliction of emotional distress claim was also dismissed because Plaintiffs had not sufficiently alleged that Defendants' conduct was extreme or outrageous. Finally, the constructive eviction claim was dismissed because more than a year had past between the owners’ accommodation request and the sale of their condominium. In sum, Counts I, II, and III went forward, but the remainder of the complaint was dismissed. Additionally, Defendant Sudler Building Services was dismissed from the complaint.
V. Delay in Granting Emotional Support Animal (ESA) Accommodation
Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014). Appellee Ajit Bhogaita, who suffers from post-traumatic stress disorder (PTSD), filed suit against Appellant Altamonte Heights Condominium Association, Inc. ("Association") for violating the disability provisions of the Federal and Florida Fair Housing Acts, 42 U.S.C. § 3604(f)(3)(b) (“FHA”) and the Florida Fair Housing Act, when it enforced its pet weight policy and demanded Bhogaita remove his emotional support dog from his condominium. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than $100,000 in attorneys' fees. This court affirmed that decision finding that there was evidence that the Association constructively denied appellee's requested accommodation. In fact, the court opined, "Neither Bhogaita's silence in the face of requests for information the Association already had nor his failure to provide information irrelevant to the Association's determination can support an inference that the Association's delay reflected an attempt at meaningful review."
VI. Fees or Pet Deposits for Emotional Support Animal (ESA)
Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc., 778 F. Supp. 2d 1028 (D.N.D. 2011). Plaintiffs bring this action against Goldmark Property Management alleging discrimination on the basis of disability in violation of the Fair Housing Act. The alleged discriminatory policy is a mandatory application fee, non-refundable deposit, and monthly charge that Goldmark imposes on tenants with disabilities who reside with a non-specially trained assistance animal (i.e. a companion pet). These same fees are waived for tenants with disabilities who reside with a trained assistance animal (i.e. a seeing eye dog). The FHA encompasses all types of assistance animals regardless of training; therefore, Goldmark's policy implicates the FHA. Further, Plaintiffs have met their burden of establishing a prima face case of discrimination and have presented sufficient evidence to create genuine issues for trial on the questions of the necessity and reasonableness of the requested accommodation and whether Goldmark's alleged objective for the policy is permissible under the FHA and not pretextual. Therefore, Goldmark's motion for summary judgment is granted in part and denied in part. It is granted as to Plaintiffs' claim of disparate treatment because no proof was offered of a discriminatory intent. It is denied as to Plaintiffs' claims of disparate impact and failure to make a reasonable accommodation.
VII. Generally that an Emotional Support Animal (ESA) Can Be a Reasonable Accommodation
Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n, 2004 WL 1888284 (Cal.App. 3 Dist.), 4 Cal. Daily Op. Serv. 8188, 2004 Daily Journal D.A.R. 11,013. In this California case, the Elebiaris sought permission from their condominium association to keep a small dog as a companion (both suffered from severe depression and found that taking care of a dog alleviated their symptoms and enabled them to function more productively). The association refused their request, leading the Elebiaris to file a claim with the Fair Employment and Housing Commission (the FEHC), which found in favor of the Elebiaris. After the Superior Court granted the condominium's petition, the FEHC and residents appealed. The appellate court held that the trial court erred in overturning the FEHC decision where the FEHC's finding that a companion dog constituted a reasonable accommodation for plaintiff's disability was supported by substantial evidence.
VIII. Municipal Ordinances Prohibiting Certain Animals and Conflict of Law
Anderson v. City of Blue Ash, --- F.3d ----2015 WL 4774591 (6th Cir., 2015). This case stems from a dispute between Plaintiff/Appellant and the city of Blue Ash (City) on whether Plaintiff/Appellant could keep a miniature horse at her house as a service animal for her disabled minor daughter. Plaintiff/Appellant’s daughter suffers from a number of disabilities that affect her ability to walk and balance independently, and the horse enabled her to play and get exercise in her backyard without assistance from an adult. In 2013, the City passed a municipal ordinance banning horses from residential property and then criminally prosecuted plaintiff/appellant for violating it. Plaintiff/Appellant’s defense was that the Americans with Disabilities Act (“ADA”), and the Fair Housing Amendments Act (“FHAA”), both entitled her to keep the horse at her house as a service animal for her daughter. Rejecting those arguments, the Hamilton County Municipal Court found Plaintiff/Appellant guilty. Plaintiff/Appellant filed suit in federal court arguing that the ADA and FHAA entitled her to keep her horse as a service animal. The district court granted summary judgment to the City, finding that Plaintiff/Appellant's claims were barred by claim and issue preclusion stemming from her Municipal Court conviction. On appeal, the Sixth Circuit found that, because the fact-finding procedures available in a criminal proceeding in municipal court differed substantially from those available in a civil proceeding, Plaintiff/Appellant's conviction had no preclusive effect on this lawsuit. Furthermore, while there was no evidence that the City's actions were motivated by discriminatory intent against the minor daughter or had a disparate impact on disabled individuals, there were significant factual disputes regarding whether the ADA or FHAA required the City to permit Plaintiff/Appellant to keep her miniature horse at her house. The district court's grant of summary judgment to the City on those claims was therefore reversed.
Warren v. Delvista Towers Condo. Ass'n, Inc., 49 F. Supp. 3d 1082, 1089 (S.D. Fla. 2014). In its motion for summary judgment, Defendant argues Plaintiff’s accommodation request under the Federal Fair Housing Act (the “FHA”) to modify Defendant's “no pet” policy was unreasonable because Plaintiff's emotional support animal was a pit bull and pit bulls were banned by county ordinance. In denying the Defendant’s motion, the District Court found that changing a no pets policy for an emotional support animal was a reasonable accommodation under the FHA. The court also found that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice. However, in line with US Department of Housing and Urban Development notices, the court found genuine issues of material fact remained as to whether the dog posed a direct threat to members of the condominium association, and whether that threat could be reduced by other reasonable accommodations.
IX. Nexus or Connection to Need for Emotional Support Animal (ESA)
Nason v. Stone Hill Realty Association, 1996 WL 1186942 (Mass. 1996) (unpublished). A tenant with multiple sclerosis took in her mother's cat when her mother became ill. The housing authority had a no pets policy and requested that the tenant remove the pet from the premises. The tenant in turn offered a letter from her physician stating that "there would be serious negative consequences for her health if she was compelled to remove the cat." The court held that the tenant did not meet her burden of proving a nexus between the cat and her multiple sclerosis, reasoning that the physician's note does not state that the cat is necessary to alleviate her symptoms and that a more reasonable accommodation may be available.
Crossroads Apartments Associates v. LeBoo, 152 Misc.2d 830 (N.Y. 1991). Landlord brought an eviction proceeding against tenant with a history of mental illness for possession of a cat in his rental unit in violation of a no pets policy. Tenant alleged that he needed the cat to alleviate his "intense feelings of loneliness, anxiety, and depression, which are daily manifestations of his mental illness." The court held that in order to prove that the pet is necessary for the tenant to use and enjoy the dwelling, he must prove "that he has an emotional and psychological dependence on the cat which requires him to keep the cat in the apartment." The court denied the housing authority's motion for summary judgment, stating that there was a triable issue of fact as to whether the cat was necessary for the tenant to use and enjoy the dwelling.
Janush v. Charities Housing Development Corporation, 169 F.Supp.2d 1133 (N.D. Ca., 2000). Tenant brought action under the Federal Fair Housing Act alleging that her landlord failed to reasonably accommodate her mental disability by refusing to allow her to keep companion animals in her rental unit. Tenant put forth evidence establishing that the animals lessened the effects of her mental disability by providing companionship. The housing authority argued that only service dogs are a reasonable accommodation. The court rejected the housing authority's argument, holding that animals other than service animal can be a reasonable accommodation for a disability. Also, the court noted that whether an accommodation is reasonable is a fact-specific inquiry, requiring an analysis of the burdens imposed on the housing authority and the benefits to the disabled person.
Majors v. Housing Authority of the County of DeKalb Georgia, 652 F.2d 454 (5th Cir. 1981). Tenant had a history of mental illness and kept a dog in her apartment despite a "no pets" policy. The housing authority refused to waive the "no pets" policy and brought an eviction proceeding. Tenant filed a complaint in federal district court alleging violation of Section 504 of the Rehabilitation Act for failure to waive the "no pets" policy as a reasonable accommodation for her disability. The district court granted the housing authority's motion for summary judgment and the tenant appealed. The court of appeals held that the housing authority deprived the tenant of the benefits of the housing program by enforcing the no pets rule, reasoning that waiving the no pets rule would allow the tenant to fully enjoy the benefits of the program and would place no undue burdens on the housing authority.
X. Places an Emotional Support Animal (ESA) Can Go/No Public Accommodation
Stamm v. New York City Transit Auth., Not Reported in F.Supp.2d 2011 WL 1315935 (E.D.N.Y., 2011). Plaintiff brought this action pursuant to Title II of the Americans with Disabilities Act (the “ADA”), Section 504 of the Rehabilitation Act of 1973, and New York State and New York City laws, alleging that the New York City Transit Authority (“NYCTA”) and the Manhattan and Bronx Surface Transit Operating Authority (“MaBSTOA”) (collectively, “Defendants”) failed to ensure that their vehicles and facilities were accessible to her and other persons with disabilities who utilize service animals. Defendants moved for summary judgment, arguing that Plaintiff (1) was not disabled, (2) was not entitled to use a “service animal,” (3) was seeking to bring dogs which do not qualify as “service animals” onto Defendants' vehicles; had not made out a Title II claim and (5) could not make out a claim for intentional infliction of emotional distress. Defendants' motion for summary judgment was granted only with respect to that portion of the eleventh cause of action that alleged intentional infliction of emotional distress. The parties were also directed to submit supplemental briefing.
Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Hawaii, 2003). Condominium resident filed a complaint alleging the housing authority violated the Federal Fair Housing Amendments Act by failing to waive the "no pets" as a reasonable accommodation for his handicap. The court held that where the primary handicap is mental or emotional in nature, an animal "must be peculiarly suited to ameliorate the unique problems of the mentally disabled," and granted the housing authority's motion for summary judgment on the issue of the housing authority's failure to make a reasonable accommodation under the FHA. PART OF THE COURT'S ORDER WAS TO REMOVE CONDITION ON EXIT THAT SAID "FOR DISABLED RESIDENTS ONLY" TO TAKE ESAS.
XI. Proof of Disability to Keep Emotional Support Animal (ESA)
Green v. Housing Authority of Clackamas County, 994 F.Supp. 1253 (D. Oregon, 1998). Plaintiffs were tenants of a county housing authority and alleged that the housing authority violated the Americans with Disabilities Act, the Federal Fair Housing Amendments Act, and Section 504 of the Rehabilitation Act, by failing to reasonably accommodate their request for a waiver of a "no pets" policy to allow for a hearing assistance animal in the rental unit to reasonably accommodate a hearing disability. The housing authority argued that the dog was not a reasonable accommodation for the tenant's specific disability because the dog was not certified as a hearing assistance animal. The court granted plaintiff's motion for summary judgment, holding that the housing authority violated the federal statutes when it required proof from the tenants that the dog had received hearing assistance training.
Housing Authority of the City of New London v. Toni Tarrant, 1997 WL 30320 (Conn. 1997) (unpublished). A mother renting housing alleged that her son was "mentally challenged" and required the companionship of a dog pursuant to Section 504 of the Rehabilitation Act. The court rejected the tenant's allegations that her son had a qualifying mental disability, reasoning that the son received high marks in school prior to the commencing of the eviction proceedings. The court held that without evidence of a mental or physical disability, no reasonable accommodation is required.
XII. Specialized Training Not Required for Emotional Support Animal (ESA)
Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995). Plaintiffs appealed decision of district court denying their claim that defendants violated the Federal Fair Housing Act for failing to allow a hearing dog in their rental unit as a reasonable accommodation for their hearing disability. The landlord denied the request, alleging that the dog was not a "hearing dog," and that the tenants did not have a legitimate need for the dog because the dog lacked professional training. The Court of Appeals held that if the dog was not necessary as a hearing dog then the plaintiffs were not entitled to the dog as a reasonable accommodation under the FHA. Also, the court held that a disabled person must meet two standards in arguing that an accommodation be made: (1) the accommodation must facilitate the disabled person's ability to function; and (2) the accommodation must survive a cost-benefit balancing that takes both parties' needs into account. The court vacated the decision of the lower court and ordered a new trial because of misleading jury instructions.
XIII. Species of Animals Other Than Cats/Dogs as Emotional Support Animals (ESAs)
Anderson v. City of Blue Ash, --- F.3d ----2015 WL 4774591 (6th Cir., 2015). This case stems from a dispute between Plaintiff/Appellant and the city of Blue Ash (City) on whether Plaintiff/Appellant could keep a miniature horse at her house as a service animal for her disabled minor daughter. Plaintiff/Appellant’s daughter suffers from a number of disabilities that affect her ability to walk and balance independently, and the horse enabled her to play and get exercise in her backyard without assistance from an adult. In 2013, the City passed a municipal ordinance banning horses from residential property and then criminally prosecuted plaintiff/appellant for violating it. Plaintiff/Appellant’s defense was that the Americans with Disabilities Act (“ADA”), and the Fair Housing Amendments Act (“FHAA”), both entitled her to keep the horse at her house as a service animal for her daughter. Rejecting those arguments, the Hamilton County Municipal Court found Plaintiff/Appellant guilty. Plaintiff/Appellant filed suit in federal court arguing that the ADA and FHAA entitled her to keep her horse as a service animal. The district court granted summary judgment to the City, finding that Plaintiff/Appellant's claims were barred by claim and issue preclusion stemming from her Municipal Court conviction. On appeal, the Sixth Circuit found that, because the fact-finding procedures available in a criminal proceeding in municipal court differed substantially from those available in a civil proceeding, Plaintiff/Appellant's conviction had no preclusive effect on this lawsuit. Furthermore, while there was no evidence that the City's actions were motivated by discriminatory intent against the minor daughter or had a disparate impact on disabled individuals, there were significant factual disputes regarding whether the ADA or FHAA required the City to permit Plaintiff/Appellant to keep her miniature horse at her house. The district court's grant of summary judgment to the City on those claims was therefore reversed.
Velzen v. Grand Valley State Univ., 902 F. Supp. 2d 1038 (W.D. Mich. 2012). On March 30, 2012, Plaintiff and the Fair Housing Center of West Michigan (“FHCWM”) brought suit against Defendants, a university, alleging unlawful discrimination under the Fair Housing Act (“FHA”), Federal Rehabilitation Act, and Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”), for denying Plaintiff’s request to keep an emotional support animal (a guinea pig) in on-campus housing. All claims brought against the individual defendants were brought against them in their official capacities as university administrators. Plaintiffs sought both injunctive and compensatory relief. Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief can be granted. The District Court decided the following would be dismissed: (1) all claims under the PWDCRA against all defendants; (2) all claims for compensatory damages under the FHA brought against all defendants; (3) all claims for injunctive relief under the FHA brought against the institutional defendants; (4) all claims for relief under the Rehabilitation Act by the FHCWM; and (5) all claims for relief under the Rehabilitation Act by Plaintiff that depended on disparate treatment. The following claims remained: (1) Plaintiff and the FHCWM's claims under the FHA seeking injunctive relief from the individual defendants; and (2) Plaintiff's claims against all defendants for compensatory damages and injunctive relief under the Rehabilitation Act pursuant to the failure to accommodate theory.