In a classic Saturday Night Live skit, Eddie Murphy portrays a jailed poet named Tyrone Green. His poem selected for publication is entitled "Kill My Landlord", and the title of this post paraphrases one of the lines in that poem, which asks whether a watchdog does or does not bite. The importance of that line for community associations becomes evident in a recent decision by the U.S. District Court for the Southern District of Florida, especially for those community associations that have "no pet" policies and/or restrict certain "dangerous" dog breeds. In Warren v. Delvista Towers Condominium Association, Inc., one of the key issues was whether a pit bull terrier could not only be considered an emotional support animal, but also whether the pit bull could be kept despite a Miami-Dade County, Florida ordinance that completely banned the pit bull dog breed from the county.
The facts of the case are as follows: Paul Warren owned a unit within a condominium located in Miami-Dade County, Florida; the applicable condominium association had a "no pet" policy, which provided that all pets other than birds and fish were prohibited from being kept in the units; Mr. Warren was diagnosed by a psychiatrist as suffering from depression and post traumatic stress disorder; Mr. Warren's psychiatrist strongly recommended to the association that it make a reasonable accommodation in its "no pet" policy to allow Mr. Warren to reside with Mr. Warren's assistance animal, which was a pit bull dog (the actual breed of the dog was still being disputed, but was assumed to be a pit bull for purposes of the ruling); the psychiatrist stated that the dog had therapeutic use and function for Mr. Warren; and the condominium association refused to approve the accommodation, based on Miami-Dade County's ordinance that specifically banned the ownership of the pit bull breed. The association argued that the association could not be acting unreasonably with respect to its denial of Mr. Warren's dog since the association was acting in accordance with the ordinance.
The ordinance in question went into effect on January 1, 1990, and provided in pertinent part that "[N]o pit bull dogs may be sold, purchased, obtained, brought into Miami-Dade County, or otherwise acquired by residents of Miami-Dade County anytime after [March 31, 1990]. No such newly-acquired pit bull dogs may be kept, maintained, or otherwise harbored within Miami-Dade County, and each day any such newly-acquired pit bull is so kept, maintained, or harbored shall constitute a separate violation of [Section 5-17]"
Subsequently, Mr. Warren sued the condominium association under the Fair Housing Act over the association's refusal to grant Mr. Warren the accommodation of allowing the pit bull to reside in the unit. The Court went through the four (4) items required for a plaintiff to prevail on a failure to accommodate claim under the Fair Housing Act: (1) Mr. Warren had to establish that he was disabled or handicapped within the meaning of the Fair Housing Act; (2) that Mr. Warren requested a reasonable accommodation from the condominium association; (3) that the accommodation was necessary to give Mr. Warren an opportunity to use and enjoy his dwelling; and (4) that the condominium association refused to make the requested accommodation. The condominium association agreed for purposes of its motion for summary judgment that Mr. Warren had met all four requirements, but that the requested accommodation of allowing him to keep the pit bull was unreasonable based on the prohibition contained in the Miami-Dade County ordinance. The Court's review was then limited to whether Mr. Warren's request to keep the pit bull was reasonable.
The Court found that emotional support animals, as defined by the Fair Housing Act, are a reasonable accommodation, and the association had not alleged that allowing Mr. Warren to keep his pit bull would have imposed an undue burden on the association and/or that allowing him to keep the dog would have altered the nature of the association's operations. The Court further held that the Fair Housing Act carries a presumption in favor of a reasonable accommodation, so a significant risk needs to actually exist in order to deny that accommodation, and the risk cannot be remote or speculative. So, the denial cannot be based simply on the fact that the pit bull breed as a whole may be more aggressive than other dog breeds, or be perceived to present a risk generally. More importantly, the Court found that the Miami-Dade County ordinance that banned the pit bull breed was preempted by the Fair Housing Act in the context of Mr. Warren's case, as the ordinance stood as an obstacle to the objectives of Congress in enacting the Fair Housing Act in the first place, namely allowing the condominium association to prevent equal opportunities in housing based on the breed of the dog. The Court held that if the Miami-Dade County ordinance were enforced against Mr. Warren, it would violate the Fair Housing Act by permitting a discriminatory housing practice, and that Mr. Warren would not be afforded an equal opportunity to use and enjoy his dwelling.
It is important to note that the Court also recognized that there are certain instances where the Department of Housing and Urban Development (HUD) does allow for the denial of a reasonable accommodation in the form of an assistance animal if that animal's behavior poses a direct threat and the animal's owner takes no effective action to control the animal's behavior so that the threat is mitigated or eliminated. In addition, HUD has issued notices that state a request to accommodate an assistance animal can be denied if: the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; or the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.
Many community associations have "no pet" policies that prohibit dogs entirely, and many community associations have prohibitions or restrictions on certain "aggressive" or "dangerous" breeds of dogs from being in the community. Unless the decision in Warren is appealed or revised in some way as the case progresses, an owner arguably can now have and keep a pit bull or similar breed of dog despite such restrictions in the community's governing documents if the owner can show the four items required to prevail on a failure to accommodate claim under the Fair Housing Act, as described above, when the dog in question is the reasonable accommodation being requested. Therefore, Tyrone Green's rhetorical question of whether the watchdog (or emotional support animal) bites becomes important for those community associations, which must demonstrate and be able to document that the specific pit bull or similar "aggressive" breed of dog being requested to be kept by an owner as an accommodation under the Fair Housing Act actually poses a direct threat to the health or safety of others in the community, and that threat cannot be reduced or eliminated by another reasonable accommodation.
Due to the complexity of the Fair Housing Act cases, and the potentially significant monetary penalties associated with violations of that Act, if an issue regarding an emotional support animal or whether an owner requires a reasonable accommodation arises, a community association should contact its association attorney immediately. Otherwise, the association may end up being "bitten" by the consequences of a violation of the Fair Housing Act, and Tyrone Green will finally have an affirmative answer to his question.
DISCLAIMER: The information and materials on this blog are provided for general informational purposes only and are not intended to be, and should not be used as, legal advice of any kind. Being general in nature, the information provided may not apply to your specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. The content is as of the date of the post, and subsequent changes in the law may have occurred.
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