This CAUSE came before the Court upon Defendant Delvista Towers Condominium Association, Inc.’s Motion for Summary Judgment.
Additionally, the Court requested 'further briefing regarding the affect, if any, of 42 U.S.C. § ■ 3615 on the Miami-Dade County ordinance relied upon by Defendant in its motion for summary judgment. The parties have timely filed their supplemental memoranda. (D.E. Nos. 129, 130). After careful consideration, this court denies Defendant’s motion for summary judgment (D.E. No. 76) for the reasons set forth herein.
I. Background
Delvista is a condominium association within Miami-Dade County, Florida. (D.E. No. 77 at 1). Plaintiff owns and resides in Delvista Towers Condominium, which has a “no pet” policy, with the exception of birds and fish. (D.E. No. 77 at 3). Plaintiffs psychiatrist, Dr. Robert Vassal, diagnosed Plaintiff with Severe Recurrent Major Depression Disorder and Post Traumatic Stress Disorder (“PTSD”). (D.E. No. 70-1 at 2). On June 12, 2013, Dr. Vassal “strongly recommended” to Delvista that it make a reasonable accommodation to its “no pet” policy pursuant to the Fair Housing Act (the “FHA”), allowing Plaintiff to live with his assistance animal, “Amir,” because of the dog’s therapeutic use and function. Id. Delvista also received a written letter from Plaintiff directly, explaining his disorder, attaching the letter from his psychiatrist, and requesting a reasonable accommodation to the “no pet” policy, (D.E. No. 70-2 at 3-4). On June 27, 2013, Delvista’s legal counsel sent correspondence to Dr. Vassal and Plaintiff requesting additional information “to properly evaluate [Plaintiffs] claim that he requires a reasonable accommodation” and threatened Plaintiff with the possibility of a lawsuit if the information was not provided within ten days. (D.E. Nos. 70-3, 70-4). Thereafter, Plaintiff retained counsel who again petitioned for the accommodation on his behalf. (D.E. No. 70-5). To date, Delvista has failed to grant the accommodation, but Plaintiff continues to keep Amir in his dwelling. (D.E. No. 103 at 10, D.E. No. 104 at 8). In failing to grant the accommodation, Delvista argues that the accommodation is per se unreasonable because Amir is allegedly a pit bull, and pit bull dogs are banned by ordinance in Miami-Dade County (D.E. No. 77 at 2).
Pursuant to Fed.R.Civ.P. 56(a), “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there will be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
If the moving party bears the burden of proof at trial, the moving party must establish all essential elements of the claim or defense in order to obtain summary judgment. See U.S. v. Four Parcels of Real Prop, in Greene & Tuscaloosa Counties,
By contrast, if the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party’s claim or affirmative defense. Celotex Corp.,
III. Analysis
To prevail on a failure to accommodate claim pursuant to Section 3604(f)(3)(B) of the FHA, Plaintiff “must establish that (1) he is disabled or handicapped within the meaning of the FHA, (2) he requested a reasonable accommodation, (3) such accommodation was necessary to afford him an opportunity to use and enjoy his dwelling,- and (4) the defendants refused to make the requested accommoda
The FHA defines a discriminatory housing practice as any “act that is unlawful under section 3604, 3605, 3606, 3617 of this title.” 42 U.S.C. § 3602(f). Plaintiff has brought this action alleging that Defendant failed to make a “reasonable accommodation” under Section 3604 of the FHA. (D.E. No. 70); see 42 U.S.C. § 3604(f)(3)(B). Defendant argues that the requested accommodation is unreasonable because a Miami-Dade County ordinance bans Amir’s alleged breed—pit bull. (D.E. No. 117 at 11); see also Miami-Dade County, Fla., ch. 5-17, § 89-22 (effective April 4, 1989).
The first question that must be answered is whether an emotional support dog, such as the role that Amir allegedly fulfills for Plaintiff, is a reasonable accommodation under the FHA. Section 3604(f)(3)(B) of the FHA indicates that discrimination includes: “A 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.” Although the FHA does not define a “reasonable accommodation,” the Eleventh Circuit has held that an accommodation is unreasonable if “(1) it would impose an undue financial and administrative burden on the housing provider or (2) it would fundamentally alter the nature of the provider’s operations.” Schwarz,
This Court must next address whether allowing Plaintiff to keep “Amir”—the specific animal at issue in this case—in his dwelling, is a reasonable accommodation. Plaintiffs request to live with Amir stems from the emotional support that Amir allegedly provides Plaintiff in alleviating his symptoms of PTSD and severe Major Recurrent Depressive Disorder. Defendant argues that Amir is a pit bull-a breed specifically banned by Miami-Dade County law—and, therefore, per se unreasonable (D.E. No. 76 at 6).
HUD issued a final rule in 2008 pursuant to 42 U.S.C. § 3614a providing that accommodations to allow an emotional support animal are generally reasonable and that emotional support animals do not require task specific training. Particularly, the rule states:
emotional support animals provide very private functions for persons with mental and emotional disabilities. Specifically, emotional support animals by their very nature, and without training, may relieve depression and anxiety, and help reduce stress-induced pain in persons with certain medical conditions affected by stress.
Pet Ownership for the Elderly and Persons With Disabilities, 73 FR 63834-001. In light of the HUD rule, it is of no moment whether Amir is specially trained. The HUD rulings and notices make clear that an emotional support animal need not be specifically trained because the symptoms the animal ameliorates are mental and emotional, rather than physical. Although the final rule was issued in regards to HUD-assisted public housing and multifamily housing projects, the rationale is equally persuasive in this instance
In addition to denying reasonable accommodations based on an undue administrative burden or a fundamental alteration to the nature of operations, HUD also allows for the denial of a reasonable accommodation in the form of an assistance animal if the “animal’s behavior poses a direct threat and its owner takes no effective action to control the animal’s behavior so that the threat is mitigated or eliminated.” See Schwarz,
Finally, this Court must address whether the Miami-Dade County ordinance banning pit bull dogs makes Plaintiffs request unreasonable per se; Defendant contends that it does. (D.E. No. 76 at 6). Plaintiff argues that the HUD Notice prevents the application of any breed, height, and weight restrictions to assistance animals. (D.E. No. 86 at 5). Plaintiffs prescribed emotional support animal is allegedly a banned breed in Miami-Dade County. As discussed supra, the FHA, through HUD, has issued several rules and notices discussing the presumption of assistance animals and the circumstances under which a denial is warranted. Thus, this Court must address whether the County ordinance is preempted by the FHA.
State laws that “interfere with, or are contrary to the laws of congress, made in pursuance of the constitution” are invalid. Wis. Pub. Intervenor v. Mortier,
Section 3615 of the FHA provides: Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in which this subchapter shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a state, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.
42 U.S.C. § 3615 (2012) (emphasis added). In enacting the FHA, Congress intended to provide equal housing opportunities for disabled persons. See H.R.Rep. No. 100-711, at 13 (1988). An example of compliance with the statute, as already discussed, includes the alteration of a building’s “no pet” policy to accommodate a blind person and his seeing eye dog. See 24 C.F.R. § 100.204(b). Without the accommodation, “the blind person will not have an equal opportunity to use and enjoy a dwelling”
In the present case, if the County ordinance were enforced it would violate the FHA by permitting a discriminatory housing practice. In failing to grant Plaintiffs request to live with his assistance animal because of the dog’s alleged breed, Plaintiff is not afforded “an equal opportunity to use and enjoy [his] dwelling.” 24 C.F.R. § 100.204(b). Thus, the breed ban “stands as an obstacle” to the objectives of Congress in enacting the FHA, by allowing a condominium complex to prevent equal opportunities in housing based on the breed of a dog. Jones,
As discussed previously, if Amir were alleged to be any other breed, a reasonable accommodation would include an alteration to the “no pet” policy to allow the assistance animal as long as Amir did not pose a direct threat that could not be mitigated through other reasonable accommodations. See HUD Notice at 3. The only remaining genuine issue of material fact as to Count I, therefore, is whether Amir poses a direct threat to members of the condominium association, and whether that threat can be reduced by other reasonable accommodations.
IV. Conclusion
After careful consideration, and for the reasons state herein, it is hereby:
ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment (D.E. No. 76) is DENIED.
Notes
. Defendant moves for summary judgment only as to Cqunt I of Plaintiff's four-count First Amended Complaint. (D.E. No. 70). Count I alleges "Failure to Reasonably Accommodate Against Defendant Delvista Condominium Association, Inc.” (D.E. No. 70 at 6). This Court, therefore, addresses that argument alone.
. “For the sole purposes of this Motion, the Defendants will accept as true that Plaintiff has a qualifying disability and has fulfilled all necessary prerequisites to making a request for a reasonable accommodation required under law.” (D.E. No. 76 at 6).
. The FHA defines an assistance animal as “An animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability.” U.S. Dep’t of Hous. and Urban Dev., Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-funded Programs, http://www.fairhousingnc.org/wp-conten1/uploads/2013/05/HUD-FHEO-2013-01-Service-Animals-and-Assistance-Animals-PWD-in-Housing-and-HUD-funded-programs. pdf (last visited June 25, 2014) (the "HUD Notice,” at 2).
. The FHA covers all dwellings "except as exempted by subsection (b) of this section.” 42 U.S.C. § 3603.
. This Court has previously noted in this case that it finds HUD notices persuasive in its Omnibus Order Granting in Part and Denying in Part Plaintiff's Motions to Strike Defendants’ Affirmative Defenses to Plaintiff's First Amended Complaint. (D.E. No. 117)