[RPPTL LandTen] Service Animals, Emotional Support Animals etc.
Leonard Cabral
LensLaw at Lenslaw.com
Tue Aug 18 20:21:23 PDT 2015
Harry:
My first case in Federal Court was an ADA case. I worked with Kathy and BJ Ownen on Fair Housing cases, before I concentrated more on subsidized housing. My first wife lost her sight and she had a guide dog. I fought for her rights in the early 1980. It was a hard fight but I knew this area of law very well at one time. She was prohibited from bringing her guide dog into Parrott World in Miami and the local chapter of the Lighthouse backed Parrott Jungle. I experience the benefit and independence she obtained by having a guide dog so I was like a dog on a bone when it came to guide dogs. Now it is 35 years later and the pendulum has swung the wrong way. What is happening is far beyond the intent of the law and I don’t blame the law I blame the people that are abusing the law. It makes it real bad for those who actually need a companion dog and if the MD’s just write scripts for service animals it will not be long when the legislature will react negatively hurting those who need companions. I could do what you are asking with some additional training. The question I have is there any money in it? Would it be worth my time to change my practice? At this point in time my position on “for or against” companion dogs is “it depends on the case, but err on the side of caution. As Cary Sabol said, it is complicated and fluid and very delicate.
I think it would be a good change of pace too.
Leonard P. Cabral.
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, August 18, 2015 1:08 PM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
Thank you Marty,
For the record, I am not advocating for or against service animals. We all just need firm advice we can safely give. It is exploding in college towns right now as the students are all getting prescriptions from their doctors.
I would like the big firms who work for all the associations to chime in as they take a very hard line approach with the person requesting the service animals and are causing us a lot of problems and liability to the unit owners and their property managers.
If there is enough interest, I can put some pressure on the National Apartment Association and the National Multihousing Council and FAR can pressure NAR. It is almost an emergency situation and then add to that the dog exclusions in all the homeowner’s insurance policies. A clear legislative fix is needed ASAP.
Harry
LAW OFFICES OF
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PH: 1 800 253 8428
FAX: 1 800 367 9038
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Email: harry at evict.com<mailto:harry at evict.com>
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Martin Lawyer
Sent: Tuesday, August 18, 2015 12:39 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
Dear Harry (and others):
I can provide the perspective of the tenant/consumer of housing services in the context of the U.S. Fair Housing Act as amended in 1988 (signed into law by President Ronald Reagan).
The fact you most need to know about the “animal” situation is that the law’s focus is on the person -- not the animal. Thus, a landlord’s or HOA’s prohibition and regulation of “pets” is fairly well useless in defense of claims under the Act.
The Act is found at 42 U.S.C. §§ 3601 et sequitur.
For your purposes, the operative statutes are § 3602(h) (definition of “handicap”) and § 3604(f) (special rights of persons with “handicaps”). I have attached formatted versions of both statutes.
You also need to recognize that the Act does not protect persons with “disability”. It protects persons with “handicap”. “Handicap” is a much broader, more inclusive category. If you have trouble rationalizing this, remember that with the “Education of All Children’s Handicap Act”, kids who are “gifted” and in honors classes are considered “handicapped” requiring special educational adjustments.
Thus, the first question of proof is: Does the consumer have a “handicap” that is recognized by a person entitled to give opinion testimony in a court of law. The law does not require opinion testimony; but I would never make a claim/request without its existence.
The second question is: Is there a condition of the premises (or the provider’s rules) that adversely affects the consumer’s handicap?
The third question is: Is there a “reasonable action” that the provider can take that will “accommodate” the consumer?
The one factor in the Act in the housing provider’s favor is that the action requested by the consumer must be reasonable.
To give an exaggerated example, the consumer may prove that he has an emotional need (not desire) to have an elephant present in the home; but no court in the U.S. would say that the provider has to allow the consumer to bring an elephant into the home.
However, you should know that the U.S. Dept. of HUD took a “canary” case all the way to U.S. 10th Circuit and won wherein the condo unit owner’s grandson had the emotional need for the canary. (Both parents of this minor child were killed simultaneously.)
= = = = =
I hope that you find the above brief synopsis useful and a good starting point.
Cheers !
Marty
C. Martin (Marty) Lawyer, III
Florida Bar # 128095
Bay Area Legal Services, Inc.
1302 N. 19th St., Suite # 400
Tampa, FL 33605-5230
(813) 232-1222, Ext.109
FAX: 248-9922
“Preserving Independence, Hope and Dignity”
From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, 18 August, 2015 11:51
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
I have never been at such a loss in my life on one area of law.
While I am not too into learning new law at this point, maybe we can get a small subgroup together.
I had 3 of these already today.
The main issue is what proof can be asked of the applicant/tenant for the service animal need and who is qualified to provide that proof.
I have seen some wild things/forms/info requests coming out of extremely large national and Florida firms who focus on representing associations. I do not think they are legal. I would welcome their input as they are putting their neck out on the line for these associations.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com<http://www.evict.com/>
Email: harry at evict.com<mailto:harry at evict.com>
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary P. Sabol, Esq.
Sent: Tuesday, August 18, 2015 11:40 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
I actually attended a CLE on this issue recently and my guess would be that there probably are not any private attorneys who feel confident in this area of law right now. Even the attorney from the housing commission who gave the presentation acknowledged there is a lot of confusion and conflicting rules when it comes to application of ADA, Fair Housing, Fed. laws and State Statutes. I have found it's almost impossible to give the right answer to a property owner. If one set of laws doesn't apply or allows for a certain course of action, then there always seems to be another set of laws that is the opposite.
I would love to see any CLE's or discussions on the issue because as Harry said, this is not going away.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Office: (561) 413-4449
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-------- Original Message --------
Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals
etc.
From: Jariel Bortnick <jariel.bortnick at gmail.com<mailto:jariel.bortnick at gmail.com>>
Date: Tue, August 18, 2015 10:58 am
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
To start, maybe we could do a section CLE on the topic?
Jariel
On Tue, Aug 18, 2015 at 10:36 AM, Harry Heist <harry at evict.com<mailto:harry at evict.com>> wrote:
We need an attorney who REALLY knows this law inside and out for referrals for questions.
We are buried in questions and requests that we cannot answer or are uncomfortable in answering.
We just saw a Florida case the other day where a Florida attorney’s blatant bad advice cost an association over 20K
Never in 25 years have I seen this. It is totally out of control.
We have an attorney we refer all the time in Georgia but we are looking for one who knows this law inside and out in Florida and is prepared to go out on a limb and actually answer questions.
You all probably know we have a LOT of clients. This could be good opportunity for someone who really knows the law, is keeping up on it 100% and can give a solid answer.
This stuff is NOT going away.
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428<tel:1%20800%20253%208428>
FAX: 1 800 367 9038<tel:1%20800%20367%209038>
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Website: www.evict.com<http://www.evict.com/>
Email: harry at evict.com<mailto:harry at evict.com>
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Jariel Bortnick
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