Service/Therapy Dogs

Linda,

Service animals and therapy animals are two different things.

Keep in mind that The Fair Housing Act covers service animal provisions for residential housing situations not the ADA. Per HUD FHEO Notice FHEO-2013-01 (link is pdf document) Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal. This is likely why the Davis-Stirling site says you may ask for documentation.

The request may also be denied if: (1) 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, or (2) 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. Breed, size, and weight limitations may not be applied to an
assistance animal.

Therefore, if the animal is not able to be kept under control, the Association can ask that it be removed. However, prior to making such a request, the Association should consult with a local attorney versed in FHA statutes.

Does your HOA, Linda, have rules against dogs being off leash? If so, send the unit owner a courtesy letter telling them they must follow the rule. Inform them that if they don't the Board will call them to a hearing and possibly fine them.

If they don't comply, follow your procedures for calling the Owner to a hearing and fining them. If your own fining procedures aren't clear, go to davis-stirling.com and see what they advise.

As Melissa advises, you also might be able to call animal control, specially if your HOA has no rule against loose dogs (our does an we enforce it).

Whether or not a service or therapy dog, your HOA rules about controlling dogs must be followed.

First off, thank you for all of your replies. Yes, I know there is a difference between a service dog and a therapy dog. The problem we have is that the homeowner has been contacted regarding the loose dog and she denies that it is happening. Hard to get a picture when it occurs. On top of that, they started out with the dog belonging to the parents of the tenant who live elsewhere and she was dog-sitting. Then the owner told me the dog belong to the tenant. The story keeps changing. At one point the homeowner even offered to provide me paperwork showing the dog is a service animal. According to the owner, the tenant goes to her parents house to do service with the dog, whatever that means.

Document!
Every conversation, what who said/claimed and when. You might need it later. It's clearly not a service dog if their story is changing.

Yes, rules state dogs us be leashed and under control at all times in the common area. Yes, I document everything ... letters and emails, I keep everything!

Jon,

Although I agree with you. The links I provided in my first posting do mention animals and PTSD (which was the claim).

Generally speaking service dogs as a rule do NOT run loose away from the person they are serving. They are trained to remain in close proximity to their person. And they are never off leash outside.

I know this because a gentleman living across from me trains them. His dogs are calm, well behaved, and not running around the area.

From what the OP has posted my guess the tenant has a story to have a dog. Simple to determine with a few questions.

Actually, I should clarify.

The ADA applies to buildings that are open to the public (both businesses and non-businesses).

Unless the Association has a building open to the public (pool, clubhouse, etc.) then the ADA is not applicable. However, the FHA is applicable.

PitA ....this letter is something we can require? I'm pretty leery of asking someone whether or not their dog is a service or therapy animal. The ADA website stipulates you can't demand "proof" that the dog is service/therapy. I don't want the Association to get used because we're asking proof.

Tim,
This isn't a service dog or therapy dog. That's pretty clear if the provided accounts of behaviour and owner comments are accurate.

I think that asking them to fill out a form is akin to saying "We'll let your dog stay, even though it's a rule-breaker, if you find a "doctor" to fill out this form *wink* *wink*".

If this dog really is running loose, and the story has changed several times, I would jump right to issuing a violation notice (or compliance request letter) for the cited behaviour, up to or including that based on information provided to the board (the ever-changing stories) that the board has concluded it is not compliant with the rules.

http://www.hud.gov/offices/fheo/PIRC/DocumentsAbstracts/Disability-Law-Center-R8/Letters/DLC-Animal-Letter/Sample-letter-for-Companion-Animal.doc

Hardly anonymous. Extremely specific and identifiable.

The issue for Linda's board mainly is the problem of the dog funning around off-leash despite the HOA's rules.

The issue is not that the residents change their stories, or FHA. Is the problem you/your Board have no proof the dog is off-leash, Linda? Is that why you haven't called the residence Owners to a hearing??

//We have a tenant who has a large American Eskimo dog - runs loose and out of control in the community. These tenants have been ongoing problems since they moved in and unfortunately, one is the son of the owner, along with baby mama and a couple of kids. On one occasion when the dog was loose, the tenant was asked who the dog belonged to and she said her parents. When I contacted the homeowner, she said the dog was the tenant's and for PTSD from serving our country. Really laid it on thick when I questioned about the dog. I was very careful in questioning, but am wondering where to go from here. Dogs over 35 pounds are not allowed in the community - except for service/therapy animals. I really don't think this one is either of those and right now, the dog appears to be living there full time.//

Hi Kerry,

As I read the OP's post the issues are two-fold; initially, she makes mention of the unleashed dog running unattended through the neighborhood, but her primary concern seems to me to relate to the FHA/assistance animal issue. If I am mistaken in my interpretation, I welcome correction by the OP.

If I were advising this Board, I would recommend that a letter be sent to the homeowner and the tenants that makes mention of the fact that the dog has been witnessed running loose in the community on multiple occasions and needs to be on a leash when out and about in the community (I'm assuming, of course, that the subject CC&Rs require dogs to be leashed under such circumstances, as is typical). Even if the dog qualifies under the FHA as an assistance animal (and absent extraordinary circumstances), it would still have to be leashed while outside if everyone else's dog is required to be leashed per the CC&Rs.

However, since there was a substantive conversation between a Board member and the homeowner touching on the alleged characterization of the dog as an assistance animal, the letter should also note: (a) the fact that the CC&Rs prohibit dogs weighing in excess of 35 lbs. from being kept in the community unless they qualify as assistance animals, and (b) that any request for the assistance animal exception to apply to the dog in question should be requested in writing and supported by reliable documentation of a disability and the person's disability-related need for the assistance animal.

Keep the letter cordial in tone, and be sure to run it past experienced Association counsel before sending it out.

These are very serious issues, and must be handled with care and under the guidance of counsel. If some of you on this thread are still not convinced, I would suggest that you examine the Justice Department's page here:

https://www.justice.gov/crt/recent-accomplishments-housing-and-civil-enforcement-section

Among the "recent accomplishments" noted are the following:

//On August 2, 2016, the court entered a consent order in United States v. Blass (D. Kan.). The complaint, which was filed on August 1, 2016, alleges that defendants violated the Fair Housing Act on the basis of disability by sending their tenant with a disability a letter strongly suggesting that she move out of their property and into a property better suited to fit her disability. The complaint also alleges that defendants coerced and interfered with the tenant because she had previously filed a HUD complaint against defendants asserting her right to keep an assistance animal. The consent order requires defendants to pay $5,000 to the tenant and to provide her with a letter apologizing for their actions.

On July 15, 2016, the Division filed a Statement of Interest in Arnal v. Aspen View Condo. Ass’n (D. Colo.), a lawsuit alleging discrimination on the basis of disability and retaliation under the Fair Housing Act. The plaintiff, the owner of a condominium unit, alleges that his condominium association improperly denied a reasonable accommodation to its “no dogs” policy to allow his tenant to keep a service dog that assisted her with her epilepsy, and that the condo association retaliated against him for allowing the tenant to keep the dog by issuing fines. The Statement of Interest argued that a plaintiff may maintain a retaliation claim even in the absence of an underlying discrimination claim and that evidence that defendants’ imposition of fines on a unit owner for allowing a tenant the requested accommodation supported a prima facie case of retaliation under Section 3617, notwithstanding the tenant’s alleged failure to provide what the condo association considered to be adequate and timely documentation of her disability and disability-related need for an accommodation.

***

On February 8, 2016, the court entered a consent decree in United States v. Schimnich (D. Minn.). The complaint, which was filed on November 15, 2013, alleges that the owner and manager of a three-unit residential rental property St. Cloud, Minnesota violated the Fair Housing Act by refusing to rent an apartment to the HUD complainant because she used an assistance animal. The consent decree requires the defendant to pay $2,000 to the HUD complainant, to adopt a reasonable accommodations policy and to obtain fair housing training.

On January 22, 2016, the court entered a consent decree in United States v. Brooklyn Park 73rd Leased Housing Assoc., LLC (D. Minn.), a Fair Housing Act case alleging that the owners and managers of an apartment complex in Brooklyn Park, Minnesota placed undue conditions on a woman’s request to live with her assistance animal and then refused to renew her lease. The consent decree requires the defendants to pay $35,000 to the woman and to adopt a reasonable accommodations policy and obtain fair housing training.

***

On January 7, 2016, the court entered a consent order in United States v. Christensen (D.S.D.). The complaint, which was filed on September 18, 2015, alleged that the owners of an apartment complex refused to allow a tenant to have an assistance animal as a reasonable accommodation to the no-pet policy. The settlement requires defendants to pay $6,000 to the HUD complainant.

On December 23, 2015, the United States Attorney's Office filed a Fair Housing Act complaint in United States v. Trump Village Section IV Inc. (E.D.N.Y.), alleging that a housing cooperative in Brooklyn, New York refused to allow an Army combat veteran with PTSD and two other residents with disabilities to live with their emotional support animals and then retaliated against them for exercising their fair housing rights.

***

On September 4, 2015, the court entered a consent order in United States v. University of Nebraska at Kearney (“UNK”) (D. Neb.), in which the United States alleged that two former students with disabilities were denied the right to keep assistance animals in their university apartments. The United States also alleged that UNK’s no-pet policy, which exempted animals owned by Residence Hall Directors and service animals under the ADA, constituted a pattern or practice of discrimination. Under the consent order, UNK will: (1) pay $140,000 to the two former students who sought and were denied reasonable accommodations to keep assistance animals; and (2) change its housing policy to allow persons with psychological disabilities to keep animals with them in university housing where such animals provide necessary therapeutic benefits.//

These are only a few examples of the potential adverse consequences that might befall an association in this context. There are many, many more examples that can be cited.

James - our Declaration ALLOWS service and/or therapy dogs, whether they exceed the 35 pound weight limit or not. This is not the problem. The problem is that the dog was off leash and out of control - seen three times like this. Doesn't exactly sound like service/therapy dog behavior to me!

I must be missing something, Linda. Why hasn't the residence's owner been called to hearing since his residents are violating the leash rule? You already, it seems have written to the Owner about the off-leash problem. One warning should be enough.

Fining Owners can deter such behavior. If the tenants are engaged in other behaviors that violates your rules, send them a warning letter and if they don't comply, invite the Owner to a disciplinary hearing.

If they are breaking laws, then, of course, the police should called.

In most CA governing docs, James, including those of our HOA, the Owner is responsible for the conduct of their tenants, employees, invitees, etc. Now, it makes sense to send copies of the warning letters to the tenants, but the Owner must get these letters.

So, it's the Owner who must be invited to a hearing if their tenants allegedly violate the rules. The Board might agree to include the tenant at such a hearing, but is not required to in CA.

IMO, Linda needs to halt any communication with the tenant and only deal with the Owner in writing citing the specific rules or covenants that have been allegedly violated.

It seems to me that it's a little early to pay an attorney about the loose dog since the HOA Board, so far as I can tell, has not tried to fine the Owner for the loose dog. IMO, the Board is irresponsible for not enforcing its governing documents. If a another resident gets bitten or knocked down by this rather large loose dog, which residents have reported to Linda or the Board, Linda's HOA could be liable.

Now if Linda wants to share all of the other activities that bother the entire community, I might see it differently an suggest an attorney too.

Excellent advice.

This is what I was trying to point out but couldn't seem to put it into words (I also missed the fact that the OP is dealing with two issues and not one).

Hi Kerry,

In case you (or anyone else) may be interested, Section 720.305, Fla. Stat., provides, in pertinent part:

//(1) Each member and the member’s TENANTS, GUESTS, AND INVITEES, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:
(a) The association;
(b) A member;
(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and
(d) Any TENANTS, GUESTS, OR INVITEES occupying a parcel or using the common areas.
The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. This section does not deprive any person of any other available right or remedy.

(2) The association may levy reasonable fines. A fine may not exceed $100 per violation against any member or any member’s TENANT, GUEST, OR INVITEE for the failure of the owner of the parcel or its OCCUPANT, LICENSEE, OR INVITEE to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents. A fine may be levied by the board for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney fees and costs from the nonprevailing party as determined by the court.// (emphasis added)

I share this statutory background to provide context for my comments yesterday re: making the offending tenant/occupant a party to any enforcement action the Association may wish to pursue.

As you can see, the Florida Legislature has limited the effectiveness of fines as an enforcement/behavior modification tool by declaring that fines may not becomes liens against property if they are less than $1,000.00 in amount. The practical impact of that statutory clause is that unless the governing documents of the community expressly provide that fines levied by the association either constitute or may be treated as a lien against property, the use of fining is limited in its practical effect. Yes, the association can bring a small claims action against the offending owner, tenant, etc. to recover the amount of the fine and its reasonable attorney's fees and costs, but at the end of the day, unless the offending owner, tenant, etc. has assets that can be reached by post-judgment process, the association is throwing good money after bad. In my experience, utilization of an association's fining rights where the governing documents don't expressly authorize fines to become liens against the subject owner's real property is far less effective than engaging counsel to send a cease and desist demand and following up with an action seeking injunctive relief.

That's my GENERAL observation. Any good attorney knows, however, that general rules only carry you so far, and that the facts of each individual case are critical in advising his/her client.

Given the specifics we know from Linda's posts, I would strongly advise my client to engage counsel stat to send a cease and desist demand to the owner and the tenants. The primary reason for such advice is that a large dog roaming about a community unattended represents a serious risk of injury to all other residents and guests in the community AND THEREFORE COULD CAUSE THE ASSOCIATION TO INCUR VERY SIGNIFICANT LIABILITY IN THE EVENT THAT THE DOG WERE TO, FOR EXAMPLE, KNOCK OVER AN ELDERLY WOMAN WALKING ON THE SIDEWALK AND CAUSE HER TO BREAK A HIP, ARM OR SHOULDER. That cease and desist demand would be civil in tone, but very firm. It would apprise the recipients in no uncertain terms that any further incidents wherein the dog was observed roaming about the community would be cause for the filing of a lawsuit against the owner AND the tenants for injunctive relief without further notice, and would seek entry of immediate ("preliminary") injunctive relief and recovery of the association's reasonable attorney's fees and costs, which would be substantial.

Now, as a practical matter, I will readily concede that this approach makes far more sense in a larger, well-funded community than it may in a small, underfunded community. I generally represent the former and not the latter (although I have a few association clients with less than 500 homes). A substantial portion of my practice also involves the representation of individual clients bringing actions against their associations, so I like to think that I have a well-balanced perspective on such matters. In my professional opinion, not engaging counsel to deal with Linda's scenario -- at least based on what has been shared to date -- is myopic and risky.

Just my 2 cents, FWIW....

Kerry/Linda,

It appears that the efficacy of fining as an instrument of compliance enforcement is limited in CA as well -- at least in this law firm's judgment:

http://www.davis-stirling.com/CollectingFines/tabid/3206/Default.aspx

//Collecting fines is not impossible but it can be challenging.//

Ultimately, it is all about leverage, Kerry. The more effective the leverage the association has in in exercising its right to suspend the offending party's access to highly desirable amenities, the more effective a fining/suspension process will be. In your case, you are fortunate to have those highly desirable amenities -- especially the secure garage. Now that I am aware of those additional facts, I would concur with your judgment that proceeding in the fashion you've advocated makes very good sense for your particular community.

REPEAT:

I definitely know this! I'd like to change the policy and increase the fines. This 30 day bit is ridiculous in my opinion. My concern right now is I would like information on statutes for fines in California. Would like to make sure we're doing this right and by the law.

Yes, Jon makes sense, Linda.

Your board needs to vote to change your fining policy. Why allow 30 days to correct a dog off leash? Or a noise nuisance?? Is that 30-day period in your governing documents?? what is the wording?

Send the letter and ask for immediate correction OR the Owners will be called to a hearing and potentially fined $xx.

Do you, Linda have a fine-doubling policy on repeat offenses like Jon & our HOA does?

Ours is $100 for first offense of dog off leash, then can be $200, then $400. We have the same for after-hours noisy parties on balconies.

(Most of our fines are $50 and after 1 a 1st warning letter to correct the behavior.)

You deserves kudos for your & your husband's hard work. do you get any support from other directors?

Linda, please vista davis-stirling.com, Due Process to learn the legal way to conduct hearings and levy fines in CA. These must be published, probably in your Rules & Regs or sent annually to Owners with the annual budget.

So review this so you & your Board can craft a proper list of things for which Owners might be fined, the notice you must give prior to a hearing, etc.

I promise you, though, there's no requirement in CA that alleged violators get 30 days to cure violations. That only makes sense in certain situations, usually architectural. Other violation obviously should be cured immediately. Read the info. Get your Board to help!

http://www.davis-stirling.com/tabid/1749/Default.aspx#axzz2DibvtWko

should get you started, Linda.

Good luck!