Yesterday was the 32^nd anniversary of the ADA. People with disabilities and disability rights have certainly come a long way, but there is certainly much more to go.

 

Today’s blog entry is the result of a case that was sent to me in a discussion that I had with several colleagues about breed restrictions. We also talked about the HUD circular, which I have previously talked about before, here. I have also quite frequently taken the position that the circular simply would not survive Kisor, which case we discussed here. A published case from the Southern District of Florida, Warren v. Delvista Towers Condominium Association, here, that Marcy LaHart, a Florida attorney focusing on animal law, litigated back in 2014 has caused me to reconsider whether the circular would not get judicial deference under Kisor. The circular may also even survive the major questions doctrine. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that emotional support animals/service animals are reasonable accommodations under the Fair Housing Act; court’s reasoning that the Fair Housing Act preempts the Miami-Dade breed restriction ordinance; why the HUD circular just might control even after Kisor; why the HUD circular might survive the major questions doctrine; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

Plaintiff owned and resided in a condominium with a no pet policy, with the exception of birds and fishes. Plaintiff’s psychiatrist diagnosed plaintiff with severe recurrent major depression disorder as well as PTSD. On June 12, 2013, plaintiff’s psychiatrist strongly recommended to the Condominium Association it make a reasonable accommodation to its no pet policy pursuant to the Fair Housing Act so that plaintiff could live with his assistance animal, Amir, because of the dog’s therapeutic use and function. Plaintiff sent a letter to the Condominium Association explaining his disorder and attaching the letter from his psychiatrist and requesting a reasonable accommodation to the no pet policy. Subsequent to that letter, the Condominium Association’s legal counsel sent correspondence to the psychiatrist and to the plaintiff requesting additional information to properly evaluate plaintiff’s claim that he required a reasonable accommodation. The letter also threatened plaintiff with the possibility of a lawsuit if the information was not provided within 10 days. So, plaintiff retained legal counsel who again petitioned for the accommodation on plaintiff’s behalf. The Condominium Association never granted the accommodation, but plaintiff did continue to keep his dog in his dwelling. Miami-Dade County had a pit bull dogs prohibited ordinance, and the Condominium Association argued that the accommodation was per se unreasonable because of that fact.

 

II

Court’s Reasoning That Emotional Support/Service Animals Are Reasonable Accommodations.

 

1. Prevailing on a failure to accommodate claim under the Fair Housing Act means a plaintiff has to establish: 1) he is disabled or “handicapped,” within the meaning of the Fair Housing Act; 2) he requested a reasonable accommodation; 3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling; and 4) the defendant refused to make the requested accommodations.
2. Discrimination under the Fair Housing Act includes a refusal to make reasonable accommodations to its rules, policy, practices, or services, when such accommodation may be necessary to afford a person equal opportunity to use and enjoy a dwelling.
3. The 11^th Circuit has held that an accommodation is unreasonable if it imposes an undue financial and administrative burden on the housing provider or if it fundamentally alters the nature of the provider’s operations.
4. The Sec. of HUD has the authority and responsibility for administering the Fair Housing Act. In exercising that authority, HUD promulgated 24 C.F.R. §100.204, which provides two examples of situations where an accommodation has been found to be reasonable. In particular, §100.204(b) says that a building with a no pets policy must accommodate a blind person and his seeing-eye dog, otherwise the blind person does not have an equal opportunity to use and enjoy a dwelling. That example specifically demonstrates that an alteration to a no pet policy building to allow for an assistance animal is a reasonable accommodation.
5. Since an essential element of both 42 U.S.C. §3604(f)(3)(b) and 24 C.F.R. §100.204(a) is that the accommodation be reasonable, it follows that allowing a person with a disability to keep a dog in a housing unit with a no pet policy is a reasonable accommodation.
6. Defendant made no allegation that allowing plaintiff to have an assistance animal would impose an undue burden or fundamentally alter the nature of the provider’s operations.
7. HUD has previously said that emotional support animals are in play when it comes to allowing people with disabilities to compensate for their disabilities to enjoy and use dwellings. So, it simply doesn’t matter whether plaintiff’s dog is especially trained.
8. HUD does allow for the denial of a reasonable accommodation in the form of an assistance animal where the animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated. Such a risk requires the existence of a significant risk and not a remote or speculative risk.
9. An assistance animal can be denied where 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. It also can be denied if 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.
10. Whether the animal is a direct threat is distinctly a question of fact.

 

III

Court’s Reasoning That the Fair Housing Act Preempts the Breed Restrictions in the Miami-Dade Ordinance

 

1. State laws interfering with or contrary to the laws of Congress made in pursuance of the Constitution are invalid.
2. The Fair Housing Act specifically provides that any law of the state, political subdivision, or other such jurisdiction purporting to require or permit any action that is a discriminatory housing practice is invalid.
3. Complying with the Fair Housing Act includes altering a building’s no pet policy to accommodate a blind person and his seeing-eye dog because without that accommodation, a blind person will not have an equal opportunity to use and enjoy the dwelling that a person without a disability would have.
4. The clear and manifest purpose of Congress is to provide individuals with disabilities equal use and enjoyment of their dwelling.
5. Any state or local ordinance that prevents the Fair Housing Act from achieving its purpose of equal housing opportunity to individuals with disabilities can’t stand. Therefore, the Miami-Dade County ordinance is preempted by the Fair Housing Act and the particular breed of plaintiff’s dog is completely irrelevant.

 

IV

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

1. Previously we talked about Kisor v. Wilkie, here. In that blog entry, we discussed how the Supreme Court will look at whether agency interpretations of their regulations is entitled to judicial deference. Let’s do a deeper dive into that by looking at the factors laid out in that decision.
2. Is 24 C.F.R. §100.204(b) genuinely ambiguous? It certainly is. We do know that seeing-eye dogs are protected under the HUD final regulations, but what about dogs used by people with disabilities that act as service dogs for other kinds of disabilities? What about what HUD calls assistance animals? What about emotional support animals? All of that is far from clear from just looking at the regulation.
3. Is the circular a reflection of HUD’s authoritative, expertise-based, fair, or considered judgment? You certainly could argue that it is. After all, Justice Kagan in her opinion specifically mentioned ADA regulations as being within an agency’s authoritative, expertise-based, fair, or considered judgment, and Fair Housing Act is a similar kettle of fish to the ADA.
4. Uncertainty certainly exists when looking at the regulation, and more than one right answer also exists when looking at the regulation.
5. The text, structure, history, and purpose of the regulation certainly leads to the circular as being one possibility.
6. The circular is certainly an authoritative or official position of HUD and it implicates HUD’s expertise in some form. Finally, HUD certainly has expertise in this area of the law, and the circular quite arguably reflects the fair and considered judgment of HUD.
7. The current circular did not create any unfair surprise to regulated parties, even if it did make a mess of things.

 

V

Thoughts on Why the HUD Circular Might Survive the Major Question Doctrine

 

1. Justice Gorsuch listed several criteria in EPA v. West Virginia, here, about when would the major question doctrine apply, including: 1) doctrine applies when an agency’s claim to power involves a matter of great political significance; 2) doctrine may apply when seeking to regulate a significant portion of the American economy; and 3) doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
   1. Unclear whether animals and dwellings involves a matter of great political significance.
   2. The circular certainly regulates a significant portion of the American economy.
   3. Animals in housing is not a particular domain of state law.
   4. Unclear what other factors Justice Gorsuch might think is important.

 

2. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.
   1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
   2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
   3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
   4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

VI

Thoughts/Takeaways

 

1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and very well is entitled to judicial deference for the reasons mentioned above.
2. My thanks to Marcy LaHart for sending me this case.
3. I don’t recommend sending a lawsuit possibility letter, as the Condominium Association lawyer did, when a tenant makes a request for reasonable accommodation as that might be construed as retaliation, which the Fair Housing Act prohibits.
4. The opinion uses the term emotional support animals and assistance animals and also cites to the regulation talking about a service dog. As we know from the circular, all of those terms are in the HUD circular and mean different things to HUD.
5. Remember that with respect to the common areas, as we know from previous blog entries, the ADA has its own rules with respect to service animals, see here for example.
6. It would take a lot of money for a Condominium Association to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling.
7. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
8. This is not the only case discussing breed restrictions. We previously discussed a similar case here.
9. Pitbulls can make good pets/therapy dogs/service animals. Over the weekend, I saw a show on the NFL network discussing the rise and fall and rise of Michael Vick. In that show, the owner of a pit bull rescue place talked about how many of the pitbulls rescued from Michael Vick’s dogfighting operation wound up making excellent pets and even therapy dogs.
10. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involves a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia.
11. Marcy informs me that the case settled for $100,000 and attorneys fees and that the settlement was not confidential.
12. Here is a picture of plaintiff with Amir, the emotional support animal discussed in our case of the day. My thanks to Marcy LaHart for sending it along.