S.D. Fla. Holds that Fair Housing Act Requires Allowing Emotional Support Animals as a Reasonable Accommodation

Earlier this week, Judge James I. Cohn of the United States District Court for the Southern District of Florida denied the defendants' motion for summary judgment in Falin v. Condominium Association of La Mer Estates, Inc., 2012 WL 1910021 (S.D. Fla., May 28, 2012).  The plaintiff claimed that the condo association violated the Fair Housing Act when it refused to waive its no-pet policy for his mother, who has a disability and uses an emotional support dog.  The association moved for summary judgment.  Among other things, it argued that the FHA does not require the accommodation of emotional support animals.  The court rejected that argument:

Defendants first point out that Ms. Falin's dog is not a “service animal” that is trained to perform a specific task, such as helping guide a blind person or recognizing the onset of seizures. Indeed, the record shows conclusively that the dog has no such training but instead serves as an “emotional-support animal” for Ms. Falin. This fact, however, is not dispositive of Plaintiff's claim. Some courts, looking to regulations promulgated under the Americans with Disabilities Act, have held that only a trained service animal may qualify as a reasonable accommodation under the FHA. See, e.g., Prindable v. Ass'n of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245, 1256–57 (D.Haw.2003), aff'd on other grounds sub nom.,Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir.2006). But more recent decisions, recognizing that the FHA and its implementing regulations include no such training requirement, have concluded that an emotional-support animal may be a reasonable accommodation under the FHA when the animal is necessary for a disabled person to enjoy equal housing rights. See, e.g., Fair Housing of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc.,778 F.Supp.2d 1028, 1035–36 (D.N.D.2011); Overlook Mut. Homes, Inc. v. Spencer, 666 F.Supp.2d 850, 858–61 (S.D.Ohio 2009); cf. Majors v. Hous. Auth. of DeKalb Cnty., 652 F.2d 454, 457–58 (5th Cir. Unit B Aug.1981) (reversing grant of summary judgment to housing authority on Rehabilitation Act claim concerning disabled person's emotional-support animal, and remanding for trial on factual issues). This Court finds the latter decisions more persuasive and adopts their reasoning here. Accordingly, the fact that Ms. Falin's dog is an emotional-support animal, rather than a trained service animal, does not entitle Defendants to summary judgment.

Popeyes Apologizes to Man with Service Dog

See this article by that title from the Atlanta Journal-Constitution.  It begins:

The Popeyes restaurant chain said Monday it has apologized to the college student asked to leave a Cobb County location because he had his service dog with him. 

Taylor Gipson, 20, has Type 1 diabetes and relies on a British Lab named Bear to alert him to rises or drops in his blood sugar levels, he told the AJC. But during a recent visit to the Popeyes on Windy Hill Road near Marietta, Gipson was asked to leave by the store manager, who then called police. 

"After reviewing all of the facts, I think we could have handled the situation better," Wendy Harkness, chief legal officer for Popeyes' parent company, told the AJC in a statement Monday.

Myths About Miniature Horses

Rep. Jason Chaffetz has this op-ed in the (Provo, UT) Daily Herald.  It begins:

Should a restaurant be required to allow horses in the dining room? Incredulously, a recent Justice Department ruling now says yes. In response, last week I proposed an amendment to the Commerce, Science, and Justice appropriations bill that would repeal this ridiculous mandate. Having passed the House, the proposal now awaits the Senate's unlikely approval. 

Despite the difficulty (some would say impossibility) of housebreaking a horse, the Obama Justice Department ruled that "service" horses -- miniature horses used to accompany people with disabilities -- are no different than guide dogs under the Americans with Disabilities Act (ADA). As a result, shops, restaurants, hotels and even airlines could be sued if they did not accommodate horses.

With all respect, this reflects a fundamental misunderstanding of what the ADA regulations require.  Those regulations specifically define "service animals" to include dogs only.  As the regulations specifically say, "[o]ther species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition."  28 C.F.R. 36.104. A business is required to accommodate service animals -- dogs -- except where "[t]he animal is out of control and the animal's handler does not take effective action to control it" or "[t]he animal is not housebroken."  28 C.F.R. 36.302(c).  So, even if we're dealing with a service dog, if it's not housebroken, a business does not have to let it in.

Because some people with disabilities are allergic to dogs or have religious objections to using dogs as service animals, the ADA regulations provide that in certain circumstances businesses must allow people with disabilities to use miniature horses to serve them.  But, far from treating them as "no different than guide dogs," the regulations place service horses in a distinctly disfavored position.  Unlike service dogs, which must be admitted unless they are out of control or not housebroken, miniature horses must be admitted only where doing so is reasonable.  The regulations specifically allow businesses to exclude miniature horses not only where they are out of control or not housebroken, but also where the facility can't accommodate "the type, size, or weight of the miniature horse," where the miniature horse's presence "compromises legitimate safety requirements," or in any other circumstance where it would not be reasonable to admit the miniature horse.  28 C.F.R. 36.302(c)(9).  What is so unreasonable about that?

ABA Supports "Breed Neutral" Policies for Service Animals

See this dispatch by that title from the ABA Journal.

Idaho Motel Pays $500 for Charging a Fee for a Service Dog

They'll also adopt a service animal policy.  See this article.

Another Reminder . . .

. . . that we need to do a much better job educating businesses about their responsibilities regarding service animals.  See this article from my neck of the woods.

N.D. Iowa Issues Preliminary Injunction Against Applying Pit-Bull Ban to Service Dog

In a case that got a lot of media coverage while I was away, Judge Mark Bennett of the United States District Court for the Northern District of Iowa issued a preliminary injunction in Sak v. City of Aurelia, --- F.Supp.2d ----, 2011 WL 6826146 (N.D. Iowa, Dec. 28, 2011).  The plaintiff, Sak, moved a couple of months ago to Aurelia, along with his service dog, which is a mixed breed with some pit bull ancestry.  Aurelia has an ordinance that prohibits people from owning pit bulls within the city limits.  After a couple of city council meetings devoted to the issue, city officials directed Sak a couple of weeks ago to kennel his dog outside of the city limits.  Sak brought this suit and sought a preliminary injunction, which Judge Bennett (one of the best federal district judges out there) granted.  Relying on the new ADA Title II regulations, the court concluded that Sak had demonstrated a likelihood that he would succeed on his claim that the city was required to grant him an exemption from its no-pit-bull ordinance as a reasonable accommodation.  The court noted that the Attorney General's preamble to the new regulations specifically addressed breed bans like Aurelia's and explained that they must be modified to permit individuals with disabilities to use their service animals, absent individualized evidence that the particular service animal at issue posed a direct threat to the health or safety of others.  Finding the other preliminary injunction factors satisfied, the court granted the requested order.

Air Force Vet Denied Test Because of Service Dog

See this story by that title from WUSA.

SDNY Sues Lawyer for Refusing to Meet with Client with Service Dog

See this story, which begins:

Federal prosecutors on Tuesday accused an Orange County law firm of refusing to meet with a disabled client because she was accompanied by a service dog trained to assist her with day-to-day tasks. 

The suit, brought by the Civil Rights Unit of the U.S. Attorney's office for the Southern District of New York, alleges that Larkin Axelrod Ingrassia and Tetenbaum and one of its partners, John Ingrassia, discriminated against Lauren Klejmont on the basis of her disability, a violation of Title III of the Americans with Disabilities Act of 1990.

Last year, the Department of Justice settled a Title III service-animal claim against a lawyer, though that case didn't involve a lawyer who discriminated against his own client.

Huss on Canines on Campus

New (at least to me) on SSRN:  Animal law scholar Rebecca Huss has posted her paper Canines on Campus: Companion Animals at Postsecondary Education Institutions, forthcoming in the Missouri Law Review.  The abstract:

This Article focuses on the issues that arise when students wish to attend a postsecondary institution accompanied by an animal. The Article begins by analyzing the federal law applicable to students bringing service and assistance animals to campus. The use of animal-assisted activities on campus is also explored. The Article continues with an examination of policies allowing students to have companion animals in campus housing. Concerns raised by administrators about allowing animals on campus are then considered. Finally, the Article sets forth the measures an educational institution should implement to ensure compliance with the law and proposes actions that can be taken to protect humans and safeguard the companion animals on campus.