{"id":832,"date":"2014-10-08T01:49:00","date_gmt":"2014-10-08T06:49:00","guid":{"rendered":"https:\/\/accessdefense.com\/?p=832"},"modified":"2014-10-08T01:49:00","modified_gmt":"2014-10-08T06:49:00","slug":"fido-frenzy-revisited-reasonableness-is-the-key","status":"publish","type":"post","link":"https:\/\/accessdefense.com\/?p=832","title":{"rendered":"Fido Frenzy Revisited – reasonableness is the key."},"content":{"rendered":"

\"chien<\/a>When 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\u00a0Sabal Palm Condominiums of Pine Island Ridge Ass’n, Inc. v. Fischer,\u00a0<\/em>\u00a02014 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.\u00a0The 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.<\/p>\n

Like many cases, this one has a particular political and legal background. The political background is what I have called “fido frenzy<\/a>“; that is, an explosion in litigation about service dogs and therapy animals. The situation has drawn enough attention to be the subject of hearings<\/a> in the California State Senate and\u00a0article<\/a>s in the New York Times and other papers. The result, it appears, was that the management of\u00a0Sabal Palm<\/em>\u00a0decided it would take an aggressive position with respect to any service dog request.<\/p>\n

The legal background to\u00a0Sabal Palm<\/em>\u00a0can be found in an\u00a0earlier case from the Sixth Circuit,\u00a0Overlook Mutual Homes, Inc. v. Spencer<\/em>, 415 F. App’x 617, 620\u201321 (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.\u00a0The management of\u00a0Sabal Palm,<\/em> or its lawyers,\u00a0<\/em>apparently thought this case would give legal cover to their aggressive approach with respect to disabled residents.<\/p>\n

In\u00a0Sabal Palm\u00a0<\/em>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<\/em>\u00a0 of her healthcare providers who diagnosed or treated the disability” and “all<\/em> documents relating to the nature, size and species of dog, as well as all documents regarding any training it received.\u201d (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.<\/p>\n

Much\u00a0of 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. \u00a0It 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.<\/p>\n

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. \u00a0No landlord or seller\u00a0demands that prospective tenant produce all<\/i> of his or her\u00a0financial or other records because it isn’t necessary to have\u00a0all<\/em> records in order to evaluate the request to lease or buy. \u00a0The 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.<\/p>\n

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\u00a0“fido frenzy” by encouraging suspicion and promoting aggressive litigation solutions to problems under the ADA and FHA. However, just because many individuals have abused\u00a0the ADA and FHA does not mean that every person requesting a reasonable accommodation can be regarded with suspicion. The courts are not\u00a0sympathetic 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\u00a0the cost of fighting perceived abuse of the ADA and FHA can be very high.<\/p>\n