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Condo Law - Can Pit Bulls be Assistance Animals?

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Cuevas, Garcia & Torres, P.A.

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Andrew Cuevas, Esq. - President

e-mail: acuevas@cuevaslaw.com

Tel: (305) 461-9500

Fax: (305) 448-7300

Introduction

Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company.  Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company.  If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (305) 461-9500 or via e-mail at acuevas@cuevaslaw.com .  If you are interested in reading previous newsletters, please visit www.cuevaslaw.com , select the icon for Newsletters , and then choose the area of law you are interested in.

Can Pit Bulls be Assistance Animals?

A condominium association located in Miami-Dade County, Florida, currently finds itself in the midst of a contentious lawsuit which has been ongoing for nearly one year with a unit owner who sued when the condominium association moved to ban his assistance animal because it alleged the dog is a pit bull.  Pit bulls are banned from being kept as pets in Miami-Dade County pursuant to a county ordinance.

The dog's breed and specific purpose lie at the heart of this particular case, which shines a bright light on whether Miami-Dade County’s breed-specific restrictions which prohibit county residents from keeping a pit bull as a pet will override longstanding Fair Housing Act protections for disabled residents with assistance animals.

The unit owner, Paul Alexander Warren, petitioned Miami's Del Vista Towers Condominium Association, Inc. (“Del Vista Towers”), to allow an exception to its "no-pets" policy and grant him a reasonable accommodation for his pit bull named Amir, who Mr. Warren claims is an assistance animal.

When Del Vista Towers denied Mr. Warren’s request, he filed suit against the condominium association in the Southern District court, claiming Del Vista Towers failed to reasonably accommodate him by not allowing him to keep Amir in his unit.

In response to Mr. Warren’s claims, Del Vista Towers sought entry of a summary judgment from the Court and based its argument upon Miami-Dade County’s breed-specific ban against pit bulls.  Specifically, the condominium association argued that Mr. Warren is not entitled to a reasonable accommodation because his dog, Amir, is a pit bull—a dog breed which is prohibited from being kept as a pet by county residents under current Miami-Dade County regulations.  The condominium association presumably believed that Mr. Warren did not have a case because of Miami-Dade County's countywide ban on pit bulls.  However, the Court did not find the condominium association’s arguments convincing and subsequently denied the condominium association’s motion for summary judgment.

Mr. Warren claims that he suffers from various mental health conditions, including Post-Traumatic Stress Disorder and Severe Recurrent Major Depression Disorder.  On June 12, 2013, Mr. Warren’s psychiatrist “strongly recommended” to Del Vista Towers that it make a reasonable accommodation to its “no pets” policy pursuant to the Fair Housing Act, allowing Mr. Warren to live with his assistance animal because of the dog’s therapeutic use and function.  Mr. Warren also sent a written letter to Del Vista Towers directly, explaining his disorder, attaching the letter from his psychiatrist, and requesting a reasonable accommodation to the “no pets” policy.

In response, Del Vista Towers’ legal counsel requested additional information "to properly evaluate" Mr. Warren’s claim and threatened to file a lawsuit against Mr. Warren and his psychiatrist if the requested information was not provided within ten days from the date of their request.

Thereafter, the unit owner hired legal counsel of his own and kept his dog in spite of Del Vista Towers’ refusal to allow for a reasonable accommodation.  Mr. Warren filed suit against Del Vista Towers on August 26, 2013, claiming violations of the Fair Housing Act and discrimination against a disabled resident.  He also alleged that the condominium building's property manager, Mr. Hyman Zelcher, intimidated him and threatened to call the police when Mr. Warren refused to remove his dog from the condominium association’s property.

Del Vista Towers has argued that providing Mr. Warren a reasonable accommodation is per se unreasonable because Amir is a pit bull, and pit bull dogs are banned by ordinance in Miami-Dade County.  While Mr. Warren has argued that Amir is not a pit bull, he has also argued that even if Amir is a pit bull, various rulings and notices from the Department of Housing and Urban Development (HUD), allow "reasonable accommodation" of assistance animals, regardless of breed or species.

Ultimately, the Court has agreed with Mr. Warren’s arguments.  "The HUD rulings and notices make clear that an emotional support animal need not be specifically trained, because the symptoms the animal ameliorates are mental and emotional, rather than physical," Judge Jose E. Martinez wrote in a July 29, 2014 Order denying Del Vista Towers’ Motion for Summary Judgment.  Judge Martinez further stated, "[i]n the present case, if the county ordinance were enforced, it would violate the FHA by permitting a discriminatory housing practice.  In failing to grant plaintiff's request to live with his assistance animal because of the dog's alleged breed, plaintiff is not afforded an equal opportunity to use and enjoy his dwelling."

In conclusion, condominium association covenants, rules, and regulations which restrict or prohibit pets are enforceable in most circumstances.  In limited circumstances, however, the Fair Housing Act may override a condominium association’s “no-pets” policy or restrictive pet rules of the community when an assistance animal is required as a reasonable accommodation for a disabled occupant of a unit.  Specifically, the Fair Housing Act requires public and private housing providers, such as condominiums, to modify policies and practices that deprive individuals with disabilities of their rights to enjoy and use their dwellings.

With regard to the use of pit bulls as assistance animals, the Fair Housing Act provides a very fluid definition regarding what constitutes an "assistance animal" and it does not make a distinction among certified assistance animals, non-certified animals, animals that solely provide psychological or emotional support, and assistance animals in training that live with the people with disabilities for whom they will work.  An assistance animal need not be individually trained nor certified.  The Fair Housing Act recognizes that assistance animals are necessary for the individuals with disabilities who have them, and as such does not categorize assistance animals as "pets."

For this reason, a condominium association cannot impose breed, size and/or weight restrictions on assistance animals or exclude assistance animals from areas where people are generally welcome, or restrict assistance animals’ access to the condominium association’s property through only a particular door, walkway or elevator.

Some condominium associations may have doubts about whether they are liable for any damage caused by an assistance animal, including a pit bull.  However, individuals with disabilities are solely responsible for the conduct of their assistance animals, and a condominium association may have recourse available if the resident fails to satisfy this obligation.  For example, the Association may require payment for any damages caused by the assistance animal or insist that an assistance animal be prevented from constant barking that disturbs neighbors.  Of course, any complaints about an assistance animal must be substantiated and not based on speculation.

This article is solely a partial explanation of all the issues related to the topic of this newsletter, and is not to be considered legal advice.  The association should consult with its legal counsel to obtain explanations of all issues addressed herein and determine what collection procedures will most benefit your association.

By Jose A. Torres, Esq.
jtorres@cuevaslaw.com

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