Pet Restrictions: Another Cautionary Tale

In follow-up to our recent article on whether chickens can be considered pets, a recent case from the First Circuit Court of Appeals offers another cautionary tale for community associations with pet restrictions. In Castillo Condominium Association v. U.S. Dept. of Housing & Urban Dev.[1], Castillo Condominium Association (the “Association”) had a “no pets” provision in its bylaws. Upon learning in 2010 that Carlos Giménez Bianco (“Giménez”), a resident of the community, was keeping a dog in his home, the Association issued a warning letter that Giménez would be fined if the dog was not removed from the unit. Giménez, who suffers from depression and anxiety, responded to the board in writing that the dog was an emotional support animal that he was entitled to keep in his home under federal law. Giménez additionally provided the board with a note from his treating psychiatrist to substantiate his position. The board refused to grant Giménez an exception to the pet restriction and Giménez eventually vacated and sold his home of 15 years.

Giménez made a complaint of disability discrimination to the United States Department of Housing and Urban Development (“HUD”). The Fair Housing Act prohibits discrimination in housing and housing-related matters based on disability, and specifically states that discrimination includes the “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” HUD conducted an investigation and subsequently issued a charge to the Association of unlawful discrimination against Giménez for its denial of a reasonable accommodation, effectively making Giménez’s housing unavailable to him.

The Association and Giménez participated in a four-day evidentiary hearing before an administrative law judge, which included testimony by Giménez, his psychiatrist, and his primary care physician, all of whom testified that Giménez suffered from a disability of chronic depression and anxiety, and that his symptoms were reduced by his emotional support dog. The decisions of the administrative law judge were appealed to the Secretary of HUD (“Secretary”), who ruled that Giménez suffered from a disability, and that the Association knew or should have known about his disability. The Secretary further found that Giménez had informed the Association that he needed an emotional support dog as a reasonable accommodation, that the Association had failed to engage in the required interactive process to discuss possible reasonable accommodations, and improperly denied Giménez’s requested reasonable accommodation. Furthermore, the Secretary awarded Giménez emotional distress damages of $20,000, and also assessed the maximum civil penalty of $16,000 against the association, citing the Association’s ignorance of the law as an aggravating rather than a mitigating factor in the decision.

The Association appealed the Secretary’s decision to the First Circuit Court of Appeals. The Court of Appeals upheld the Secretary’s decision, concluding that substantial evidence supported the Secretary’s finding that the Association’s failure to provide Giménez with a reasonable accommodation was discriminatory and in violation of the Fair Housing Act. The Court of Appeals further rejected the Association’s argument that it should be provided relief because Giménez sold his condominium at a “considerable profit”, stating that Giménez’s profit did “not excuse the Association’s failure to comply with the [Fair Housing] Act.”

Although outside of the community association context, the District Court of Oregon addressed a related issue in 1998 in Green v. Housing Authority of Clackamas County [2], where Sherry Green and her son Jeremy Welch, who was considered disabled due to deafness, were issued an eviction notice from low income housing based on a pet restriction. Welch had a hearing assistance dog, and filed a pet restriction waiver request, stating that the dog was a service animal rather than a pet. The Housing Authority of Clackamas County refused to reasonably accommodate Welch with a waiver to the pet restriction, arguing that Welch and Green were unable to provide any verification that the dog was certified in its training as a service animal.

The Court clarified that there is no federal or Oregon requirement for certification of service animals, further explaining that under federal law, the only requirements for service animals are that the animal is individually trained and works for the benefit of a disabled individual. The Court concluded that the Housing Authority failed to reasonably accommodate Welch, even though the Housing Authority would not have been unduly burdened or even impacted by permitting Welch to keep an assistance animal.

These cases remind associations of the importance of understanding the Fair Housing Act and being aware that a request for an accommodation could fall under the Fair Housing Act even if an owner does not use that terminology.  This awareness can go a long way in ensuring an association does not run afoul of the Fair Housing Act requirements. 

[1] Castillo Condominium Association v. U.S. Dept. of Housing & Urban Dev., Case Nos. 14-2139, 15-1223 (1st Cir. May 2, 2016).

[2] Green v. Hous. Auth. of Clackamas County, 994 F.Supp. 1253 (D. Or. 1998).