PET ROLES - BARKING UP THE WRONG TREE

Many of us have faced this issue and it is good to see a strong decision on this topic.

No Pet Policy Does Not Violate State or Federal Fair Housing Acts

Hawn v. Shoreline Towers Phase I Condominium Association, Inc., No. 09-11797, U.S. App. Ct., 11th Cir., Sept. 22, 2009

Covenants Enforcement/Use Restrictions/Federal Law and Legislation: An association board was within its rights to deny a homeowner's request to have a dog, when the homeowner did not provide sufficient documentation of a disability and the association had a no pet policy.

In 2004, Davis Hawn purchased a condominium unit in Shoreline Towers Phase I, located in Pensacola, Fla. When he purchased the unit, there was a sign on the property that read "No Animals Allowed." Hawn was aware of the sign and the community's no pet policy.

 

In January 2005, Hawn notified the association by letter that he had acquired a puppy named Booster. In the letter, he referred to Booster as his "pet," "pup" and "companion," but never as a service animal. In the letter, he recommended that the association change Shoreline's policy to permit homeowners to own a pet or to agree to a six-month trial period for such a policy. The association did not respond to his letter.

In June 2006, he sent another letter to the association in which he claimed that he suffered from physical and mental disabilities that stemmed from a debilitating injury that caused pain and restricted mobility. He also stated he had been robbed, kidnapped and assaulted in the past by his friend's stepson who was living in his unit while he was away on vacation. Although the person was subsequently arrested, Hawn said he had become afraid of living alone. His letter also discussed Booster and for the first time referred to him as a "service animal." He requested that Booster be exempted from Shoreline's no pet policy.

In a letter to Hawn in August 2006, the association requested further information in order to consider his request, including documentation supporting his disability claims and the qualifications of the physicians named in his request. The letter concluded "[w]hile the association sympathizes with your situation, at this time we must deny your request to keep a pet in your condominium unit."

In March 2007, Hawn sued the association, seeking monetary damages and injunctive relief under the state and federal Fair Housing Acts. The district court granted summary judgment to the association on all Hawn's claims, finding that he failed to establish that the association knew of his disability; or that the requested accommodation was necessary; or that the "No Animals Allowed" sign evidenced discriminatory intent by the association. Moreover, the court held that the association's conduct failed to rise to a level that would constitute infliction of emotional distress. Hawn appealed.

In addition to disagreeing with the findings, Hawn argued that the court failed to consider documents presented to the association during an investigation conducted by the Florida Commission on Human Relations ("FCHR"), asserting that this evidence was sufficient to provide notice of his disability and the necessity for a service animal.

The court analyzed Hawn's arguments in the context of the federal Fair Housing Act, recognizing that the Florida Fair Housing Act is substantially identical. Hawn alleged that the association violated two provisions of the Act: Section 3604(f)(3)(B) that prohibits the denial of reasonable accommodation necessary to ensure equal opportunity for disabled persons to use and enjoy their dwellings; and Section 3604(c) that prohibits "any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any … discrimination based on … handicap. …"

Hawn argued that his June 2006 letter to the association was sufficient to create genuine issues of material fact about whether the association knew of his disability and the necessity of his requested accommodation. The appeals court disagreed, noting that a duty to make reasonable accommodation must be attended by a meaningful review of the facts, and did not simply spring from the disabled person's desire for the accommodation.

Hawn's refusal to comply with the association's requests for reasonable documentation prevented it from conducting a meaningful review and, consequently, it could not have known of his disability or his need for a service animal.

The appeals court was similarly unpersuaded by Hawn's argument that the district court erred by failing to consider the documentation made available in the course of the FCHR investigation. In reviewing the court's order, the appeals court determined that the district court did, in fact, consider such evidence. Because there was insufficient evidence to create any genuine issues of material fact as to the association's knowledge of Hawn's disability, the court concluded that the district court correctly granted summary judgment to the association.

Hawn argued that, unlike a sign that reads "No Pets Allowed," the "No Animals Allowed" sign posted by the association evidenced its intent to bar all animals, including service animals for disabled individuals and was discriminatory in nature. The appeals court found such speculation to be unsupported by the record. The sign had been erected approximately 10 years before Hawn bought his unit, and the court found no evidence that the association ever discriminated against any other handicapped person or that handicapped individuals were discouraged from purchasing units in Shoreline because of the sign.

The court affirmed the district court's order for summary judgment.

©2010 Community Associations Institute (CAI). This article is reprinted with permission from the May 2010 issue of Law Reporter, a monthly e-newsletter published by CAI. All rights reserved. Further reproduction and redistribution prohibited.

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