Apartment owners and managers are well aware that when required due to the disability of an applicant or a resident, no matter what a property’s policy on pets may be, fair housing law requires that individuals with disabilities be permitted to use an assistance animal at a community. Many current fair housing complaints by the disabled involve requests for assistance animals. A recent case, and a clarified position from the Department of Justice may affect an owner’s decision as to whether to permit an assistance animal when there is a local ordinance banning certain breeds or types of animals.
In July 2014, in Warren v. Delvista Towers Condominium Association, Inc., a court refused to dismiss claims against the Florida Condo Association for refusing to permit a resident to keep his dog as an emotional support animal. This was the case even though the dog was a pit bull, a prohibited breed under local law.
The community position is that it would be unreasonable for the community to violate a local ordinance by permitting the pit bull. However, the court ruled that the ordinance banning pit bulls did not necessarily make the request unreasonable. According to the Court, if the county ordinance was enforced, it would violate federal fair housing law by permitting a discriminatory practice.
The United Stated Department of Justice, in a Frequently Asked Questions publication (July 2015), stated that municipal ordinances banning certain dog breeds do not apply to service animals. “Municipalities that prohibit specific breeds of dogs must make an exception for a service animal of a prohibited breed, unless the dog poses a direct threat to the health or safety of others. Under the ‘direct threat’ provisions of the ADA, local jurisdictions need to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal’s actual behavior or history, but they may not exclude a service animal because of fears or generalizations about how an animal or breed might behave.” While the ADA and Fair Housing Act have different rules governing assistance animals, HUD may take a similar position relative to assistance animals associated with someone’s home.
Based on this case and the DOJ position, I can no longer recommend to clients that they use a local ban on breeds as a reason for automatically rejecting a request for an assistance animal related to the ability of a disabled person to have full use and enjoyment of a property. In such cases, before rejecting such requests, I recommend that the owner of the property request that the locality waive the requirement for an assistance animal. If the locality refuses, the owner should retain evidence of the formal refusal on the part of the locality and then seek legal counsel on how to proceed. The goal in these cases should be to pass as much liability as possible onto the locality by showing that the property owner has done everything in their power to accommodate the needs of the disabled resident.