In Warren v. Delvista Towers Condominium Association, Inc. July 2014, a resident sued a a community for failure to accommodate his disability by allowing him to keep a pit bull as an emotional support animal. Miami-Dade County prohibits pit bulls as a dangerous breed, and based on this, the community refused to allow the animal as a companion animal. Somewhat surprisingly, the federal court in Florida refused the community’s request for judgment without trial. The court ruled that in order to support the claim of discrimination, a resident must show that (1) he is disabled; (2) he had requested an accommodation; (3) the accommodation was necessary to afford the resident an equal opportunity to use and enjoy the dwelling; and (4) the community refused to make the accommodation.
In this case, the community conceded that the resident was disabled and qualified for an accommodation. The only issue was whether the requested accommodation was reasonable, and due to the local ban on pit bulls, the community determined that it was not a reasonable request.
The FHA allows for the denial of a reasonable accommodation request for an assistance animal if its behavior poses a direct threat and its owner has taken no effective action to control its behavior or eliminate the risk. The threat must be from the specific animal – not a remote or speculative threat.
The court ruled that a jury would have to determine whether the particular animal poses a threat.
The court further ruled that the county ordinance banning pit bulls did not, by itself, make the request unreasonable. HUD has indicated that restrictions on breed, weight or height cannot be used to prohibit specific animals as assistance animals. The question is whether federal fair housing laws override local laws to the contrary.
Generally, state laws that interfere with or are contrary to federal law are invalid. Courts have ruled that federal fair housing law preempts any law that permits a discriminatory practice.
In this case, if the county ordinance was enforced, it would violate the FHA by permitting a discriminatory practice. For this reason, the County breed ban interferes with the objectives of Congress in enacting the FHA.
Having studied the Congressional Record extensively with regard to the “intent of Congress,” and having been an advisor to Congressional staff when the disabled were added as a protected characteristic in 1988, I’m pretty confident that the current state of the “assistance animal” situation with regard to fair housing is the result of an increasingly aggressive approach to fair housing enforcement by HUD – not the actual intent of Congress. Be that as it may, this is an important case, and it will be interesting to see how it is ultimately adjudicated. At this point, my advice to clients is still to follow local ordinances with regard to breed restrictions. If such ordinances are discriminatory, it is the ordinances that should be challenged – not property owners for following local law.