Fido Frenzy Revisited – reasonableness is the key.

chien mechant2When a Court refers to the case before it as a “sad commentary on the litigious nature of our society” you can be fairly sure that one party or the other is going to do badly. In Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer,  2014 WL 988767 (S.D.Fla. 2014) it was the owner of a condominium development who decided to rely on superficially clever lawyering instead of common sense. The disabled individual who sought a service dog didn’t fare well either, but was, in the end, the winner. The case should be helpful to property owners and managers as they sort through what they can and cannot ask about when confronted with a reasonable accommodation request.

Like many cases, this one has a particular political and legal background. The political background is what I have called “fido frenzy“; that is, an explosion in litigation about service dogs and therapy animals. The situation has drawn enough attention to be the subject of hearings in the California State Senate and articles in the New York Times and other papers. The result, it appears, was that the management of Sabal Palm decided it would take an aggressive position with respect to any service dog request.

The legal background to Sabal Palm can be found in an earlier case from the Sixth Circuit, Overlook Mutual Homes, Inc. v. Spencer, 415 F. App’x 617, 620–21 (6th Cir. 2011). In that case a the family had a pet that became a therapy dog for a daughter who suffered from an anxiety disorder. After some back and forth with the property management about the dog the property owner sued for a declaratory judgment that it did not have to allow the dog. The Sixth Circuit affirmed a decision in favor of the property owner, finding that the property owner had appropriately asked for additional information because the information provided by the family was not sufficient. It appeared that the medical evidence of a disability was inadequate because although the anxiety disorder was described by the girl’s doctor, he did not state that as a result she was disabled. The management of Sabal Palm, or its lawyers, apparently thought this case would give legal cover to their aggressive approach with respect to disabled residents.

In Sabal Palm the condominium association filed a declaratory judgment action against a disabled tenant who wanted to keep a service dog despite a “no pets” policy. The tenant’s disability (multiple sclerosis) was obvious, and the tenant provided documentation of the service dog’s training, but the association demanded “medical records from all  of her healthcare providers who diagnosed or treated the disability” and “all documents relating to the nature, size and species of dog, as well as all documents regarding any training it received.” (emphasis added by the court). The association agreed to “temporarily” allow the dog to remain while the litigation was ongoing, and sought the declaratory judgment action primarily, it claimed, to determine whether the “evolving” law justified its demand for all medical records. The occupant responded with an aggressive series of counterclaims against the association and its officers.

Much of the opinion deals with the counterclaims against the condominium association, almost all of which the Court dismissed. The “litigious nature of our society” remark by the Court seems addressed equally to the association’s original suit and the dismissed counterclaims. However, the Court ultimately refused to dismiss the occupant’s counterclaim based on a failure to reasonably accommodate the request for an exemption to the “no pets” policy.  It found that the excessive demands for information were not justified by existing law and that the disabled individual could pursue a claim for refusal to reasonably accommodate. The opinion is measured, but beneath the legal analysis there seems to be a concern that the never ending demands for information and the filing of what was bound to be an expensive declaratory judgment action against an obviously disabled tenant were an effort to put a veneer of reasonableness on a deliberate effort to drive away the tenant.

The lessons for property owners and managers is simple. First, be reasonable in evaluating a request for a service dog or therapy animal. When the disability is obvious, it is never reasonable to ask for proof of the disability. When the need for a service animal is obvious it is never reasonable to ask for proof of the need. Finally, while the tenant or prospective tenant may be requested to provide evidence that the particular animal serves the tenant’s disability, the evidence need not be conclusive if it is reasonably plausible. The best way to look at requests for information concerning service animals is to compare them other requests for information that might be made to a tenant or prospective purchaser.  No landlord or seller demands that prospective tenant produce all of his or her financial or other records because it isn’t necessary to have all records in order to evaluate the request to lease or buy.  The same is true with service dogs or therapy animals. If the information provided is reasonably reliable then it is not reasonable to ask for more, and unreasonable requests are likely to be seen as a cover up for intentional discrimination.

Beyond these practical lessons lies a deeper lesson about disabled tenants or residents. There are plenty of business organizations and even more lawyers determined to generate “fido frenzy” by encouraging suspicion and promoting aggressive litigation solutions to problems under the ADA and FHA. However, just because many individuals have abused the ADA and FHA does not mean that every person requesting a reasonable accommodation can be regarded with suspicion. The courts are not sympathetic to homeowners associations or property managers who base their treatment of the disabled on stereotypes or assumptions based on what might be found in the press or blogosphere, and the cost of fighting perceived abuse of the ADA and FHA can be very high.

NIMBY tenants and the ADA

Nimby disabled_edited-1NIMBY (“not in my back yard”) litigation is common under the Fair Housing Act. An organization that serves recovering addicts or individuals with mental disabilities will try to locate in a neighborhood where deed restrictions or zoning prohibits group homes and find its efforts blocked by the city or homeowners association because the neighbors don’t want “undesirable” individuals living in the area. Commercial landlords subject to the Americans with Disabilities Act can face the same kind of pressure not to rent to tenants who serve the disabled. A landlord who succumbs to pressure from other tenants, or makes a leasing decision based on assumptions or stereotypes may find itself on the losing end of a lawsuit or a DOJ investigation.

Special Educ. Services v. Rreef Performance Partnership-I,L.P, 1995 WL 745964 (N.D. Ill. 1995) perfectly illustrates a typical situation. The plaintiff (“SES”) operated a school and vocational education facility for developmentally disabled children. At the expiration of its lease the defendant landlord refused to renew. It claimed to have legitimate business reasons, but they were all tied in one way or another to the disabilities of the children or their needs. It complained, for example, that the busses transporting the children blocked parking places, that the children generated excessive complaints about noise or playing games in the parking lot, and, perhaps most telling, that the location was not “an appropriate place” for for children. What the plaintiff did not do was make any effort to accommodate the cause of the problems, or even to address them with SES until it refused to renew the lease. The district court had little difficulty finding that SES would probably prevail in its lawsuit and granted an injunction against eviction.

The DOJ’s involvement in this kind of commercial leasing can be found in its handling of a case by Sinergia, a non-profit that operated an facility to help the mentally disabled. When a landlord refused to rent to it because other tenants complained the DOJ stepped in. The result was a consent decree that included a $75,000 payment to Sinergia and a court order compelling the landlord to comply with the ADA.

What can a landlord do when faced with the tug-of-war between concerns about other tenants and customers and the requirements of the ADA? There are four key things to remember:

  • First, the landlord must understand that tenants who serve those with disabilities must be given special treatment. In the language of the statute, they must be given reasonable accommodations. For an ordinary tenant, violations of lease requirments or disruptive behavior by the tenant’s customers might well justify a refusal to renew or, if serious enough, a reason to evict. If those same concerns are the related to disabilities of the tenant’s customers the landlord cannot rely on its right to refuse to renew. Instead the landlord must engage in a conversation with the tenant in which the landlord seeks solutions; otherwise non-renewal or eviction are likely to be seen as discrimination.
  • Second, the landlord must document its efforts to accommodate tenant problems related to disability. The landlord in the SES case had legitimate concerns about SES as a tenant, but it did nothing to express those concerns until it decided not to renew the lease. This kind of passive-aggressive behavior will not be accepted for tenants protected by the ADA. The landlord must document its efforts to deal with tenant problems so that it is clear when the inevitable lawsuit is filed that the landlord’s concerns were not merely a pretext for disability discrimination.
  • Third, when considering a new lease the landlord needs to carefully consider whether its concerns are based on stereotypes about those with disabilities. A landlord may believe that recovering addicts are more likely engage in criminal conduct than ordinary customers, but if it refuses to lease to an addiction recovery organization it must be prepared to prove in court that this is a fact. It cannot rely on “common knowledge” about the matter.
  • Finally, the landlord considering a new tenant must also consider what reasonable solutions it might find to any real problems it may face. If the tenant uses busses, as was the case in SES, the landlord must make an effort to deal constructively with the parking problem rather than merely refusing to sign a new lease or renew an old one. Again, dialogue with the prospective tenant is critical, and must be focused on finding solutions rather than using problems as an excuse not to sign a lease.

At the end of the day the ADA’s requirements for dealing with tenants who serve the disabled are not much different than the best practices in commercial leasing; that is, work with tenants to solve problems. The difference is that refusing to engage in constructive dialogue with a tenant protected by the ADA can result in a lawsuit, an investigation by the Department of Justice, and possibly a steep fine as well as money spent on lawyers. For ordinary tenants being reasonable is optional; for ADA tenants it is the law.

The Tenth Circuit makes the ADA 2010 Standards a true safe harbor for business.

jordan-petra-photos-2A door is just a door, no matter how grand. That is what the Tenth Circuit’s held in Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 2014 WL 4290589 (10th Cir. 2014) when it reaffirmed what businesses have always believed; that is, that the 2010 Standards and their predecessor the ADAAG are a real safe harbor for business.* This is, of course, the Hollister front porch case that I and many others have blogged about in the past. In it the plaintiffs claim that the raised “front porch” at the center entrance for Hollister stores violates the ADA because it is not accessible (it is reached by steps). They claim that although the entrances that flank it on either side are accessible,  the center entrance provides a unique “experience” and so it must be accessible too. The Tenth Circuit has now rejected that claim, holding that the store’s compliance with the 2010 Standards eliminates any claim under the ADA. It’s analysis is worth studying for any business that has been or may be sued under the ADA. Continue reading

ADA and FHA Policies – One size does not fit all.

One size fits all
“Defendants cannot guarantee that an individual employee will not act inappropriately in a particular instance. However, under the ADA, Defendants can and must ensure that they adopt the proper policies and procedures to train their employees on dealing with disabled individuals and make reasonable efforts to ensure that those policies and procedures are properly carried out and enforced.”
Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 127 (N.D.N.Y. 2000).

Continue reading

“Disability” and “Handicap” are not the same, and it matters

wheelchair-question-markMany lawyers and governmental entities believe that anyone who is “disabled” for purposes of the Americans with Disabilities Act (ADA)  must also be handicapped for purposes of the Fair Housing Act (FHA). This used to be true, but may not be anymore. The difference between a disability and a handicap has important practical implications for multi-family communities and others who are subject to the accessibility provisions of the FHA. Continue reading

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Accessibility Defense

Richard Hunt Talks About ADA and FHA Litigation.

Richard Hunt Talks About ADA and FHA Litigation.

Richard Hunt Talks About ADA and FHA Litigation.

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