[RPPTL LandTen] COMPANION ANIMALS -- THE FULL OPINION -- U.S. SIXTH CIRCUIT CASE -- MINIATURE HORSE --
deborahmarkslaw at gmail.com
deborahmarkslaw at gmail.com
Thu Aug 20 03:00:25 PDT 2015
Marty- thanks for attaching the case- it was fascinating! It addresses service animals which are, to me, an entirely different issue than emotional support animals. At least with service animals there are some proof requirements- you can look at what the disability is, and how the animal is specifically trained to assist, and whether what the animal does is directly related to a disability. That is far less "wibbly wobbly" than emotional support which is where I see nearly all of the abuse. With all of the literature about how petting animals lowers blood pressure and makes people (especially the elderly and children) calmer and happier it seems to me that there will never be a case when one can challenge "emotional support" and, therefore, we might as well do away with pet regulations. What I don't understand is why anyone bothers with qualifying as a service animal when emotional support "standards" are so much looser. That is the area where we need guidelines that make sense.
I represent a landlord who had decided not to renew a tenant. Know what the tenant did next? Got an emotional support animal with a doctor note, and then threatened an ADA and Fair Housing suit if we did not renew (note: no pet lease, no pet building.) it is just out of control.
Deborah Marks
Deborah Marks, PA
18495 South Dixie Highway
Suite 134
Miami, FL 33157
305-372-9400
Sent from my iPad
> On Aug 19, 2015, at 10:33 PM, Martin Lawyer <mlawyer at bals.org> wrote:
>
> Dear Reptile L-T-ers:
>
> Attached is the full opinion, formatted from WestLaw, of the unanimous panel of the U.S. Sixth Circuit in the case of Anderson v. City of Blue Ash.
>
> Under the principles of stare decisis, every U.S. District Court in the land is required to follow this case because there is no contrary opinion by any other U.S. Circuit or by the U.S. Supreme Court.
>
> I would say that the opinion is very thorough and well-reasoned, though I would imagine that some of you would disagree. I do have to confess error in my earlier e-mail today as to the ADA claim because, the Anderson court did rule that Plaintiff had a viable ADA claim for “modification” as well as the viable claim for “accommodation” under the Fair Housing Amendments Act.
>
> Since the actual holding of the Anderson case was a reversal of summary judgment, the two claims will now be tried on their merits in the U.S. District Court in Ohio. Should be interesting.
>
> 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] On Behalf Of Carlos Arias
> Sent: Wednesday, 19 August, 2015 12:04
> To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
> Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals etc.
>
> Maybe not an elephant, but there is a case out there that held a miniature pony qualified as an emotional support animal.
>
> Best regards,
>
> Carlos R. Arias
>
> 140 N. Westmonte Dr., Ste. 100A
> Altamonte Springs, Florida 32714
> Tel: 407.636.2549
> Fax: 321.280.2489
> www.ABLawFL.com
> In compliance with the Fair Debt Collection Practices Act, this law firm is a debt collector and may be attempting to collect a debt. Any information provided will be used for that purpose.
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> From: 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 <landten at lists.flabarrpptl.org>
> 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] On Behalf Of Harry Heist
> Sent: Tuesday, 18 August, 2015 11:51
> To: 'RPPTL Landlord Tenant Committee' <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
> Email: harry at evict.com
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> From: 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
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> -------- Original Message --------
> Subject: Re: [RPPTL LandTen] Service Animals, Emotional Support Animals
> etc.
> From: Jariel Bortnick <jariel.bortnick at gmail.com>
> Date: Tue, August 18, 2015 10:58 am
> To: RPPTL Landlord Tenant Committee <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> 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
> FAX: 1 800 367 9038
> "Serving the Property Management Professional"
> Website: www.evict.com
> Email: harry at evict.com
> <image002.png>
>
> Visit us on Facebook
>
>
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> --
> Jariel Bortnick
> 561.703.1155
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> <2015 Case - 6th Circuit - Miniature Horse - Anderson v. City of Blue Ash - Formatted.pdf>
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