ROBERT N. SCOLA, JR., District Judge.
The underlying dispute in this case is whether Laurence and Deborah Fischer, who are residents of Sabal Palm Condominiums of Pine Island Ridge Association, Inc., may keep a service dog, Sorenson, in their condominium as a reasonable accommodation under the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., to assist Deborah, who has multiple sclerosis and is confined to a wheelchair. Deborah requested an accommodation in October 2011 because Sabal Palm has a no-pets policy.
The Court recently entered an Omnibus Order (ECF No. 283), which resolved the pending motions to dismiss as well as some other motions. The Court now turns its attention to summary-judgment motions filed by various parties on the Fischers' counter claims.
The Fischers brought three counterclaims against Sabal Palm and three identical third-party claims against Trapani, the attorney, and Marvin Silvergold, who was (and possibly still is) the President of Sabal Palm's Board of Directors. (ECF No. 82.) For ease of reference the Court refers to this action as the Amended Counterclaim and to Sabal Palm, Trapani, and Silvergold collectively as Counter Defendants. Because of the Court's ruling on various motions to dismiss, the Fischers' only remaining claim is that Counter Defendants violated 42 U.S.C. § 3604(f)(3)(B) by refusing the Fischers' request for an accommodation (refusal-to-accommodate claim). (See ECF No. 283.) The Fischers seek injunctive relief, compensatory and punitive damages, and their attorney fees and costs. (ECF No. 82.) With respect to this claim, each Counter Defendant moves for summary judgment while the Fischers move for summary judgment on the issue of liability. (ECF Nos. 201, 202, 225, 228.) Sabal Palm also moves for summary judgment on its declaratory-judgment action. (ECF No. 227.)
For the reasons set forth below, the Fischers' summary-judgment motion (ECF No. 225) is
Before proceeding, the Court pauses to note that, according to the Background Paper prepared for a United States Senate Informational Hearing on the subject of fake service dogs (hereafter, the "Background Paper"),
As the Court noted in the Omnibus Order (ECF No. 283), there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support. But this is not such a case. It is undisputed that Deborah has a bona fide physical disability that has severe physical symptoms. And her specially trained service dog does not assist her by providing emotional support: it assists her by helping her complete physical tasks that her physical disability makes difficult. That Counter Defendants turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society. And it does a disservice to people like Deborah who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA.
Because the bulk of the analysis focuses on the Fischers' refusal-to-accommodate claim, familiarity with the FHA provisions undergirding this claim should help the reader put the facts below into the proper legal framework. The FHA forbids discrimination "against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap."
In October 2011, Deborah notified Sabal Palm by letter that she was bringing home a trained service dog to assist her with her tasks of daily living. (ECF No. 82-1 at 2.) She obtained the dog from Canine Companions for Independence (CCI). (Id.) In early November 2011, Sabal Palm through its attorney Trapani informed Deborah that it was treating her letter as a request for an accommodation. (ECF No. 82-2 at 2.) Despite asserting that the law authorized it to make only a "reasonable inquiry" of Deborah to determine whether she was entitled to the accommodation, Sabal Palm requested extensive documentation. (Id.) It requested that Deborah produce copies of her medical records from all of her healthcare providers who diagnosed or treated the disability that she claimed made a service dog necessary. (ECF No. 82-2 at 2.) In addition, Sabal Palm requested that she provide "all documents relating to the nature, size and species of dog, as well as all documents regarding any training it received." (Id. (emphasis added).)
Deborah replied to this letter in early December 2011. (ECF No. 82-4 at 2.) She provided a link to the May 2004 Joint Statement issued by the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ), entitled Reasonable Accommodations Under The Fair Housing Act (hereafter, the "Joint Statement").
(ECF No. 82-3 at 2 (emphasis added).) She also attached a picture of "[her] in [her] wheelchair with [her] service dog[] to provide documentation of [her] visible handicap for any board member not familiar with the physical nature of [her] disability." (ECF No. 82-4 at 3.)
A few days later Trapani responded by email, contending that the information Deborah provided was insufficient and asking for more:
(ECF No. 82-5.) So the next day (December 7), Deborah provided Sabal Palm a medical history form completed by her primary-care doctor, Leslie Herzog. (ECF No. 82-6 at 2-8.) Herzog completed this form in January 2010 as part of Deborah's application for a service animal through CCI. (Id. at 3-8.) The form provides copious information, including the following: that one purpose of the form is to determine the applicant's (i.e., Deborah's) suitability for having a service dog placed with her; that Herzog has been a physician to Deborah since October 2003; that Herzog last examined Deborah in January 2010 on the same day Herzog completed the form; that Deborah has multiple sclerosis; that she is confined to a wheelchair; that she suffers from a "loss of strength, balance, [and] coordination" in all of her extremities (including her hands); that she requires attendant care on a regular basis for "all aspects of daily living"; and that she is a "good candidate" for a service dog through CCI. (Id.) This information shows that Deborah is disabled, that she needs assistance with "all aspects of daily living," and that she is a good candidate for a service dog, which clearly implies that a service dog would help with her disabilities. (See id.)
Based on this medical-history form and the letter from the dog-training professional detailing Sorenson's training, one could not reasonably doubt that Deborah was disabled; that her disability would negatively impact her ability to use and enjoy her residence; and that having Sorenson as an accommodation would help ameliorate the effects of her disability. The tasks that Sorenson is specifically trained to assist Deborah with make sense given Deborah's disability of multiple sclerosis and the symptoms of that disability. It is obvious that a service dog trained to open and close doors, turn on and off lights, and retrieve items could help a person (1) who suffers from a loss of strength and coordination in her arms and hands and (2) who is so disabled that she requires attendant care on a regular basis with all aspects of daily living.
Yet even after receiving information that should have been dispositive, Sabal Palm took the position in a February 2012 letter that it needed more information. (ECF No. 82-7 at 2.) Sabal Palm contended that she had not substantiated her need for a service dog: "you have not provided the Board with any medical records substantiating your need for the dog." (ECF No. 82-7 at 2.) So later in February 2012, Deborah gave them even more medical information substantiating her need for a dog. (ECF No. 82-8 at 2-11.)
All of these additional medical records tell a consistent story: Deborah's multiple sclerosis renders her severely disabled and requires that she have the assistance of others to maximize her functional status. The descriptions of the symptoms of her disability in these documents make it clear that a service dog trained to help retrieve items, open doors, and turn light switches on and off would help ameliorate the effects of her disability.
A "treating source neurological questionnaire" completed by Herzog in July 2009 stated that Deborah had multiple sclerosis with the following symptoms: decreased grip strength; decreased ability to perform fine manipulation, decreased ability to perform gross manipulation; gait disturbance; sensory loss; motor loss; spasticity; severe fatigue; malaise; and substantial muscle weakness on repetitive activity. (ECF 82-8 at 11.) Herzog elaborated: "Pt. [patient] with progressive exacerbations of condition — requires assistance of another with all ADLs [Activities of Daily Living] as well as with any transferring from wheelchair to another site[.]
A "home health certification and place of care" form signed by Herzog in July 2011 diagnoses Deborah with multiple sclerosis, wheelchair dependence, and debility (feebleness, weakness, or loss of strength). (Id. at 3.) It further states that "patient cannot safely leave home without assistance. Due to [patient's] health status, [patient] is homebound, and therefore requires nursing care in the home. Home healthcare is medically necessary to maximize [patient's] functional status." (Id.)
The most recent medical record is a "group disability insurance attending physician's statement" completed by Herzog in August 2011. (Id. at 5-7.) Deborah is diagnosed with multiple sclerosis, debility, and wheelchair dependence.
This still wasn't enough for Sabal Palm. Almost two months later, Sabal Palm instituted the declaratory-judgment action. In a letter sent to the Fischers by Trapani on behalf of Sabal Palm just a few days after Sabal Palm sued, Sabal Palm relayed, in relevant part, the following: that it is undisputed that Deborah is disabled; that it is undisputed that her request to keep Sorenson "would not involve an extraordinary expense on the part of [Sabal Palm]"; that Sabal Palm believed the records provided thus far were insufficient to entitle Deborah to a dog as an accommodation under the FHA; that Sabal Palm believed that it was within its legal rights to deny the accommodation and require Deborah to remove Sorenson; that Sabal Palm "recognize[d] that whether, and under what circumstances, accommodations to disabled persons are required is an evolving issue under the law"; that Sabal Palm therefore instructed Trapani to bring the declaratory-judgment action; and that while the lawsuit is pending, Deborah could "temporarily keep" Sorenson. (ECF No. 82-9 at 2-3.)
Summary judgment should be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Courts consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 of the Federal Rules of Civil Procedure requires a court to enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that
The Court sets forth the law more fully below, but here is a primer of the Court's reasoning. The materials Deborah submitted to Sabal Palm before it sued were more than sufficient to show that she was entitled to keep Sorenson as a reasonable accommodation under the FHA. These materials unquestionably establish that Deborah is severely disabled, that some of the symptoms of her disability make it harder for her to grab and manipulate items with her hands than it is for a nondisabled person, and that Sorenson is trained to assist Deborah with several tasks that would require her to grab or manipulate items with her hands. Because these materials show that Deborah has a need for an accommodation and clearly connect her disability-related need to Sorenson's skills, and because a service dog is a reasonable accommodation, Sabal Palm should have granted Deborah's request for an accommodation.
There was no need for Sabal Palm to wait more than 4 months after receiving the first materials in December 2011 to reach a decision on the accommodation. And even after waiting four months and receiving more materials substantiating Deborah's accommodation request, Sabal Palm got it exactly — and unreasonably — wrong. Sabal determined that it could lawfully deny her request for an accommodation and sued to get this Court to tell it whether it was right: the undisputed evidence is that Sabal Palm's Board of Directors unanimously voted against granting Deborah's accommodation request. (ECF No. 219-1 at 124, 175, 187.) But Sabal Palm decided to postpone enforcing this decision until a Court would rule whether its decision was correct. (ECF Nos. 219-1 at 175; 82-9 at 2-3.) No matter how one labels Sabal Palm's conduct — whether it is referred to as delaying making a decision or whether it is referred to as making a decision but declining to enforce that decision — the Court's outcome is the same.
So this case can be decided solely based on the records that Deborah provided to Sabal Palm before Sabal Palm sued. Given the circumstances of the present case, that is as it should be. When the person requesting an accommodation provides enough reliable information such that the only reasonable conclusion is that the accommodation request should be granted, the housing provider's denial of the request or undue delay in making a decision violates the FHA (specifically, § 3604(f)(3)(B)).
Besides, the additional discovery-related information would not change the result even were the Court to consider it. The same picture emerges after considering this information: Deborah is disabled and
Before analyzing the merits of the Fischers' refusal-to-accommodate claim, the Court must address an evidentiary issue. Counter Defendants appear to argue that the Court cannot consider the medical records Deborah provided before Sabal Palm sued because the records are not properly authenticated. (ECF Nos. 263 at 3; 269 at 4.) But in other places, Counter Defendants assert that these same records are "true and correct." (ECF Nos. 263 at 5-6; 269 at 5-6.) Even if Counter Defendants have not effectively conceded that these records are what they purport to be, the Court can still consider them on summary judgment. Unauthenticated hearsay statements may be considered on summary judgment when the statements could be "reduced to admissible evidence at trial or reduced to admissible form." Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999). Leslie Herzog, Deborah's treating physician, signed the forms and would be able to authenticate them or introduce the same evidence at the trial through her testimony. So the Court can and will consider these records in ruling on the various summary-judgment motions.
The Fischers claim that Sabal Palm, Silvergold, and Trapani all failed to reasonably accommodate Deborah's disability by refusing her request to allow her service dog, Sorenson, to live with her.
The FHA forbids discrimination "against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap." 42 U.S.C. § 3604(f)(2). "Such 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.'" Overlook Mutual Homes, Inc. v. Spencer, 415 Fed.Appx. 617, 620-21 (6th Cir.2011) (quoting 42 U.S.C. § 3604(f)(3)(B)). "To prevail on a[§] 3604(f)(3)(B) claim" — that is, a claim that a housing provider refused to reasonably accommodate a disability — "a plaintiff must establish that (1) he is disabled or handicapped within the meaning of the
It is undisputed that Deborah is disabled within the meaning of the FHA. The first element of her claim is satisfied.
The second element is also met: in requesting that she be allowed to keep Sorenson and be exempted from Sabal Palm's no-pet policy, Deborah requested a reasonable accommodation. An accommodation is not reasonable "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."
The governing regulation buttresses this conclusion. The companion regulation to 42 U.S.C. § 3604(f)(3)(B) is 24 C.F.R. § 100.204(a), and this regulation specifically provides that it is unlawful for a housing provider with a no-pets policy to refuse to permit a blind person to live in a dwelling unit with a seeing-eye dog. 24 C.F.R. § 100.204(b)(1). Because an essential element of both § 3604(f)(3)(B) and § 100.204(a) is that the accommodation be reasonable, it follows that allowing a disabled person to keep a dog in a housing unit with a no-pets policy is a reasonable accommodation.
The undisputed facts also satisfy the third element of necessity as a matter of law. A housing provider is required to make a reasonable accommodation "only if it `may be necessary to afford [a disabled resident of Sabal Palm an] equal opportunity to use and enjoy a dwelling.'" Schwarz, 544 F.3d at 1225 (quoting 42 U.S.C. § 3604(f)(3)(B)).
No rational factfinder could dispute that Sorenson is necessary for Deborah to have an equal opportunity to use and enjoy her dwelling. The symptoms of her disability make it difficult for her to grab and manipulate items and they require that she have assistance in all activities of her daily life. So it follows that a service dog trained to retrieve items, open and close doors, and turn light switches on and off would help alleviate some of the negative effects of her disability. Because Deborah provided unrebutted and undisputed medical and dog-training records substantiating her need for a service dog with Sorenson's training, necessity exists as a matter of law.
One additional argument under necessity deserves attention. In addition to arguing that a service dog is not a reasonable or necessary accommodation, Sabal Palm also appears to argue that even if a dog is reasonable or necessary for Deborah, a dog over 20 pounds is not reasonable or necessary. (See ECF No. 129 at 6-7; ECF 82-9 at 2.) This argument is unpersuasive. Sabal Palm offers no evidence that a smaller dog could have met Deborah's needs. A dog under 20 pounds is a small dog. So given the height of the average door handle and light switch, a small dog will have a harder time opening and closing doors and turning light switches on or off. And there will be some items a small dog cannot retrieve because of the item's height that a bigger dog would be able to retrieve. Moreover, given the height of a person in a power wheelchair, a smaller dog will have a harder time retrieving items effectively for the disabled person.
This is not just commonsense — though it most certainly is that. Deborah also wrote in an email to Trapani that, "regarding the size of my dog — the dog is matched to the height of my chair, which enables him to assist me better with his jobs, i.e. picking up items I have dropped." (ECF No. 82-6 at 2.) She also attached a picture of her in her power wheelchair with Sorenson. (ECF No. 82-4 at 3.) In the picture, the dog's size fits well with the height of her in the wheelchair. (See id.)
Deborah's statement regarding Sorenson being sized appropriately for her wheelchair is credible. It accords with common sense. And the picture she provided to Sabal Palm supports her statement.
But the most fundamental problem with the argument that a dog over 20 pounds was not necessary is that it gets the law wrong. Sabal Palm's implied argument — that even if a dog is reasonable or necessary for Deborah, a dog 20 pounds or under would suffice — is akin to an argument that an alternative accommodation (here, a dog under 20 pounds), would be equally effective in meeting Deborah's disability-related needs as a dog over 20 pounds. The Joint Statement's comments on alternative accommodations proposed by the housing provider are highly persuasive
Joint Statement at 8 (emphasis added). Since a dog over 20 pounds is a reasonable accommodation, Deborah's (commonsense) belief that a dog over 20 pounds — in particular, a dog of Sorenson's size — is better able to assist her renders the need to evaluate alternative accommodations unnecessary as a matter of law.
The point is underscored by the April 2013 HUD Statement entitled Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs (hereafter, the "HUD Statement").
The final element is whether Sabal Palm constructively denied Deborah's request to keep Sorenson. Here again, the evidence is so one-sided that Deborah prevails as a matter of law.
To understand why requires a close analysis of Overlook, a case with a procedural posture similar to the present case analyzing this precise issue (i.e., constructive denial). Although Overlook rejected the refusal-to-accommodate claim at issue in that case, the reasoning of Overlook demonstrates that the Fischers' prevail on their claim as a matter of law.
In Overlook, the Spencer family resided in Overlook, which had a no-pets policy. 415 Fed.Appx. at 618. The Spencers adopted a dog, Scooby, in 2005, and though they admitted that Scooby was not originally prescribed by a medical professional, they maintained that Scooby had a calming effect on their daughter, Lynsey, who suffered from anxiety disorder. Id. In 2007,
Overlook did not make an official decision on the Spencers' accommodation request, nor did it begin eviction proceedings; it instead sued "for a declaratory judgment that it was not required to make the requested accommodation." Id. at 619. In response, the Spencers counterclaimed, alleging, among other things, that Overlook had refused to reasonably accommodate Lynsey's disability in violation of the FHA. Id. The case proceeded to trial and after the evidence had been presented, the district court entered judgment as a matter of law for Overlook on the Spencers' refusal-to-accommodate claim, reasoning that "they had presented insufficient proof that Overlook had actually denied their request for a reasonable accommodation." Id. at 620.
On appeal, the Sixth Circuit framed the question thus: "whether the district court erred in holding that, as a matter of law, Overlook did not constructively deny the request for a reasonable accommodation by delaying making a decision on the request, requesting school and medical records, and filing suit for a declaratory judgment." Id. at 620. Put more simply, the issue was "whether a reasonable jury could find that Overlook `refused' to make the accommodation requested." Id. at 621.
The Court looked at three factors in analyzing the issue: (1) the extent to which the housing provider delayed and obstructed the process of negotiation over the requested accommodation by filing the
Overlook, 415 Fed.Appx. at 621-22 (emphasis added).
With respect to the adequacy of the information that the Spencers provided to support their accommodation request, the Court's reasoning was nuanced: "Overlook was entitled to additional information," but "[a]t the same time, Overlook was probably not entitled to the broad access to confidential medical and school records it demanded." Id. The additional, reliable information that Overlook was entitled to receive related to (a) verifying that Lynsey was disabled and (b) showing the relationship between Lynsey's disability and the need for the requested accommodation. See id. (For ease of reference, the Court will refer to information relating to these two categories as qualifying-disability information and nexus information, respectively.) Because Overlook had never received reliable information relating to either of these two categories, Overlook was not able "to verify that a qualifying disability existed or that the proposed accommodation was related to the disability." Id.
The letter from Lynsey's treating psychologist did not suffice because it "merely stated that Lynsey was receiving `psychological counseling services' and required a `service dog.'" Id. Information from a treating psychologist would ordinarily be reliable. See Joint Statement at 13-14 ("A doctor or other medical professional ... who is in a position to know about the individual's disability may also provide verification of a disability."). But the psychologist's letter in Overlook did not state that Lynsey suffered from a disability — let alone identify what that disability was — and it did not show the relationship between the assistance the dog could provide and the unspecified problems for which Lynsey was receiving counseling. See Overlook, 415 Fed.Appx. at 622. (Another
The court also found insufficient the statements from the Spencers and McCarthy, the president of the local fair-housing center: "[e]ven after receiving [this information], Overlook was entitled to additional information." Id. at 622. Unlike the information from the treating psychologist, who provided no qualifying-disability and nexus information, the information provided by the Spencers and McCarthy was qualifying-disability and nexus information, and it was specific and detailed: they informed Overlook that Lynsey suffered from and was being treated for anxiety disorder, neurological conditions, and emotional conditions; that these ailments impacted Lynsey's ability to care for herself and learn; that Scooby provided emotional support and companionship to Lynsey; and that Scooby ameliorated the effects of these conditions by being present and interacting with Lynsey. See id. at 618-19, 622. So the court did not find this information inadequate because it lacked detail or specificity. See id. at 622. Indeed, the court adopted the principles from the Joint Statement that a housing provider's inquiry to obtain reliable qualifying-disability and nexus information "need not be highly intrusive" and that, "[i]n most cases, an individual's medical records or detailed information about the nature of a person's disability is not necessary." Id. (internal quotation marks omitted) (relying on Joint Statement at 13-14.) And since the information was manifestly qualifying-disability and nexus information, the Court could not have found that the Spencers failed to provide information on these subjects to Overlook. See id.
The only remaining basis on which the Court could reject this information as it did would be that the information was not sufficiently reliable. Neither the Spencers nor McCarthy were medical or dog-training professionals. That matters because Lynsey's alleged disability was an internal condition that would not be readily apparent to a lay observer. So the Spencers' and McCarthy's statements about the disability Lynsey allegedly suffered from and about how and why Scooby helped ameliorate this disability were unreliable in light of the facts. They were lay observers who were not qualified to diagnose Lynsey or pronounce how a dog helped her.
The nature of Lynsey's putative disability and the Joint Statement buttresses this conclusion. Lynsey's disability was not obvious. Unlike a person with a physical disability, such as someone confined to a wheelchair, Lynsey's disability was internal. Similarly, her need for the requested accommodation was not readily apparent. The Joint Statement provides that when a disability is readily apparent, the housing provider may not request additional information about the requestor's disability. Joint Statement at 12-13. So too with the requestor's disability-related need for the accommodation. Id. That is, if it is readily apparent how the requested accommodation would help alleviate the difficulties posed by the disability, then the provider may not request additional information concerning the need for the requested accommodation. Id. It is only when either the requestor's disability or the disability-related need for the accommodation are not obvious that the provider may request reliable qualifying-disability or nexus information. Id. And even then, the provider's queries are limited to precisely what is not obvious. An example in the Joint Statement illustrates the point:
Id. at 13. This example is contained in the Joint Statement's answer to the following question: "[w]hat kinds of information, if any, may a housing provider request from a person with an obvious or known disability who is requesting a reasonable accommodation?" Joint Statement at 12. Moreover, the rule Overlook borrowed from the Joint Statement providing that a housing provider may request reliable qualifying-disability and nexus information, as well as information "describ[ing] the needed accommodation," is predicated on the disability in question not being readily apparent, just as the disability in Overlook was. That is so because the rule is provided in the Joint Statement's answer to this question: "[i]f a disability is not obvious, what kinds of information may a housing provider request from the person with a disability in support of the requested accommodation?" Joint Statement at 13 (emphasis added).
Since neither Lynsey's disability nor her need for a dog were readily apparent, Overlook was entitled to seek reliable qualifying-disability and nexus information. But even then, the Sixth Circuit reasoned that "Overlook was probably not entitled to the broad access to confidential medical and school records it demanded." Overlook, 415 Fed.Appx. at 622. Adding teeth to this conclusion, the Sixth Circuit recognized that "[i]n some circumstances, a housing provider that refuses to make a decision unless a requestor provides unreasonably excessive information could be found to have constructively denied the request by `stonewalling' and short-circuiting the process." Id. Finding that a provider constructively denied a requested accommodation on this basis in turn flowed from the more general principle that "injury may result when a housing provider unreasonably delays responding to a request for an accommodation and that such delay may amount to a denial." Id. The court's discussion of this particular manner of concluding that a provider constructively denied a requested accommodation was not theoretical. The court concluded its analysis of the first factor — "the extent to which Overlook delayed and obstructed the process of negotiation over the requested accommodation by filing the lawsuit" — by noting that "were it not for additional factors that are present here, the Spencers would have presented a jury issue as to whether Overlook `denied' their request." Id.
Moving onto the second factor — "the state of the law at the time Overlook filed its complaint" — the court concluded that this factor weighed in favor of concluding that Overlook had not constructively denied the Spencers' request to keep Scooby. Id. at 622-24. This factor analyzes whether the state of the law justified the housing provider in turning to the courts for clarification rather than simply responding to the request. Id. The court focused on the legal issue that Overlook argued was in its favor: namely, whether a companion animal that lacks training could be a reasonable accommodation under the law. Id. at 619, 622-23. The district court concluded that because the law on this issue favored Overlook, "Overlook was well within its rights to get a court ruling on whether a dog that is the subject of a reasonable accommodation can be any companion animal." Id. at 622 (brackets, ellipses, and internal quotation marks omitted). In reaching this conclusion, the district court had relied on a case that "held that `evidence of individual training' is required to
But the "fact that the law is not entirely clear concerning a requested accommodation will not always justify a housing provider's filing suit rather than responding to a request." Id. Because "[a]ccommodations are often highly specific," there will often be "no case law that indicates a particular accommodation is required." Id. So merely "claiming that the law is `unclear' should not entitle the provider to delay and obstruct the accommodation process." Id. But in Overlook, "Overlook could point to case law indicating that it was not required to treat Scooby" — a companion dog with no special training — "as an accommodation." Id. This "weigh[ed] against the reasonableness of a jury finding that its actions in seeking additional information and turning to the court for clarification constituted a denial of the Spencers' request." Id.
The third factor — whether the housing provider's delay in ruling on the accommodation request had the effect of depriving the disabled person of the accommodation — similarly weighed in favor of concluding that Overlook had not constructively denied the Spencers' request. See id. at 621, 623. Although Overlook did not grant the Spencers a temporary exemption from its no-pets policy, "the more important fact" was that Overlook allowed Scooby to stay with the Spencers throughout the entire dispute. Id. at 623. And it never attempted to evict the Spencers or punish them for keeping Scooby. Id. So "Overlook's actions did not deny the Spencers the benefit of Scooby's company." Id.
In concluding, the court made another important point: "[a]s a general rule, housing providers should cooperate with residents to resolve disputes over reasonable accommodations rather than turning to the courts." Id. But because the second and third factors weighed against finding a constructive denial, the court held that Overlook's actions "did not constitute a denial of [the Spencers'] request for an accommodation." Id. at 624.
Now that the Court has explicated the three Overlook factors, the Court applies them to the present case. In analyzing the first factor — namely, the extent to which the housing provider delayed and obstructed the process of negotiation over the requested accommodation by filing the lawsuit — Overlook examined whether the information that the Spencers provided Overlook was sufficient for Overlook to make a decision about the requested accommodation. Id. at 622. The Fischers had certainly provided Sabal Palm enough information for it to rule on (and grant) their request. It bears emphasizing that unlike Lynsey, who had a mental and emotional disability that was not readily apparent, Deborah Fischer had a physical disability that was readily apparent because she was confined to a wheelchair. And the rule that Overlook adopted from the Joint Statement about the reliable information a housing provider may request in response to an accommodation request was predicated on the requestor having a disability that was not readily apparent, as was the case in Overlook. See id. at 621; Joint Statement
But even setting aside that problem with Sabal Palm's actions and assuming that Sabal Palm was entitled to this medical information, Deborah provided it before Sabal Palm sued. In December 2011, she gave Sabal Palm the following: (1) the medical-history form that Herzog, her primary-care doctor, completed as part of her application for a service animal through CCI, (ECF No. 82-6 at 82-6 at 2); and (2) the letter from the dog-training professional at CCI describing the tasks Sorenson was trained to help Deborah with. The medical-history form unquestionably established that Deborah was disabled within the meaning of the FHA, and it further showed that her symptoms included a loss of strength, balance, and coordination in all of her extremities, including her hands. It is self evident that a person with such a severe disability and with these symptoms would have difficulty grabbing and manipulating objects — abilities that are also self-evidently necessary to open and close doors, turn lights on and off, and retrieve items. Since the dog-training letter established that Sorenson was trained to help Deborah open and close doors, turn lights on and off, and retrieve items, Sabal Palm had more than enough information to easily conclude that Deborah was entitled to the accommodation.
This is so even though none of the records the Fischers provided to Sabal Palm before it sued contain an express prescription, suggestion, recommendation, or other statement from a healthcare provider that Deborah needs a dog to assist her with her disability. As noted previously, the medical-history form completed by Herzog implies that Deborah needs a service dog because Herzog says that Deborah would be a "good candidate" for a service dog through CCI. (ECF No. 82-6 at 3-8.) This implication is not foreclosed by the Fischers' failure to respond to Sabal Palm's Third Request for Admissions. But even if it were, that would not matter. The implication is not necessary in order to conclude that Fischer is entitled to the accommodation under the FHA. The parties' dispute about whether the Fischers can fix their failure to respond to Sabal Palm's Third Request for Admissions is immaterial. The Fischers' Motion (ECF No. 209) on this issue is
Sabal Palm points to no law that in order for Deborah to be entitled to the accommodation, she must be able to point to an express statement from a healthcare provider that she needs a dog to assist her with her disability. That's because there is none. Although such a statement would suffice, it is not required. The Joint Statement requires that a disabled person simply "show[] the relationship between the person's disability and the need for the requested accommodation." Joint Statement at 13. As the present case demonstrates, that showing could be made without an express statement from a healthcare provider that the disabled person needs the dog. For example, if there is information connecting the service animal's training with the symptoms of the person's disability, then that would suffice: documentation of the disability-related need for the service animal "is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance." HUD Statement at 4 (emphasis added). Even more explicit, the HUD Statement provides that a housing provider that has received an accommodation request must consider, among other things, this question: "Does the person making the request have a disability-related need for an assistance animal? In other
Yet even after receiving information that should have been dispositive, Sabal Palm took the legally unsupportable position in a February 2012 letter that it needed more information. Sabal Palm contended that she had not substantiated her need for a service dog: "you have not provided the Board with any medical records substantiating your need for the dog." (ECF No. 82-7 at 2.) So later in February 2012, Deborah gave them even more medical information substantiating her need for a dog. (ECF No. 82-8 at 2-11.)
All of these additional medical records tell a consistent story: Deborah's multiple sclerosis renders her severely disabled and requires that she have the assistance of others to maximize her functional status. The descriptions of the symptoms of her disability in these documents make it clear that a service dog trained to help retrieve items, open doors, and turn light switches on and off would help ameliorate the effects of her disability.
This information conclusively demonstrates that, contrary to Sabal Palm's contention, Deborah had provided Sabal Palm with medical records substantiating her need for a dog that could retrieve items, open doors, and turn light switches on and off.
Given the dispositive nature of the information that it had received as far back as early December 2011, Sabal Palm's demands for even more information were unreasonable. As Overlook concluded, an inquiry seeking qualifying-disability information, nexus information, or information describing the needed accommodation, "need not be highly intrusive." Sabal Palm had already received detailed — and in the case of the medical records, confidential — information addressing these three points. Asking for even more medical records providing nexus information was clearly "highly intrusive," and the intrusion was not necessary. So the circumstances of the present case place it squarely within the following principle formulated by Overlook: "[i]n some circumstances, a housing provider that refuses to make a decision unless a requestor provides unreasonably excessive information could be found to have constructively denied the request by `stonewalling' and short-circuiting
The second Overlook factor — the state of the law at the time the suit was filed — also weighs in favor of concluding that the Fischers prevail on their refusal-to-accommodate claim as a matter of law. This factor analyzes whether the state of the law justified the housing provider in turning to the courts for clarification rather than simply responding to the request. Id. at 622-24. Based on Sabal Palm's Complaint and a letter from Trapani to the Fischers sent just five days after Sabal Palm sued, Sabal Palm believed at the time it filed suit that the law showed the following: that Sabal Palm was entitled to all of the medical records it requested in order to properly evaluate the accommodation; that it was within its rights to deny the accommodation because the Fischers failed to provide all the requested medical records; and that the records produced do not show that a dog in excess of 20 pounds is a reasonable or necessary accommodation. (See ECF No. 1 at ¶¶ 24-25, 28, 32, 36-37; ECF No. 82-9 at 2.)
Sabal Palm's first two beliefs — that it was entitled to all of the medical records it requested and that it was within its rights to deny Deborah the dog because she failed to provide all the requested medical records — must be reframed to properly analyze them. Because Deborah had provided Sabal Palm with medical and dog-training records before Sabal Palm sued, the question becomes whether the law supports Sabal Palm's contention that it was entitled to additional records and that it could deny her request because she failed to provide these additional records. As discussed above, the records Deborah provided were more than sufficient to verify that she had a disability that lay observers could see with their own eyes,
So too with Sabal Palm's final belief-namely, that under the governing law, the records produced do not show that a dog in excess of 20 pounds is a reasonable or necessary accommodation. The Court has already analyzed reasonableness and necessity and found that there is no dispute
In sum, the law at the time Sabal Palm sued is overwhelmingly in Deborah's favor. The second Overlook factor strongly weighs in favor of concluding that Sabal Palm constructively denied the Fischers' requested accommodation.
The third Overlook factor — whether the housing provider's delay in ruling on the accommodation request had the effect of depriving the disabled person of the accommodation — is the only factor that favors Sabal Palm. In its first communication in November 2011, Sabal Palm told the Fischers that they could "temporarily keep" Sorenson while Sabal Palm evaluated their accommodation request. (ECF No. 82-2 at 3.) Similarly, in the April 2012 letter just a few days after Sabal Palm brought the declaratory-judgment action, Sabal Palm told the Fischers that they could "temporarily keep" Sorenson while the lawsuit is pending. (ECF No. 82-9 at 3.) But in that same letter, Sabal Palm told them that it believed that it could lawfully deny their requested accommodation and require them to remove their dog. (Id. at 2.) So the Fischers have had to endure for almost two years knowing that Sabal Palm believed it could — and likely would, if given the opportunity — deny their request and force them to remove their dog. Because of this and because the other two factors strongly weigh in favor of concluding that Counter Defendants constructively denied the Fischers' accommodation request, the Court holds that the evidence is so one-sided that the Fischers prevail as a matter of law.
Sabal Palm unreasonably delayed ruling on the Fischers' accommodation request and therefore constructively denied it. By early December 2011 at the latest, Sabal Palm had received more than enough information to not just rule on the Fischers' request, but to grant it.
To be sure, some delay between receiving the records and making a decision is inevitable. A housing provider will often and quite reasonably prefer to wait to consider a request along with supporting documents at the next upcoming board meeting. But in the present case, the
A contrary conclusion leads to absurd results. For example, say a blind person requests to be allowed to keep a seeing-eye dog and objects to the housing provider's request for medical records proving that the person is blind and prescribing a seeing-eye dog. Under Sabal Palm's logic, the housing provider would not violate § 3604(f)(3)(B) when it sued to have a court determine whether it was entitled to the records it requested, so long as the housing provider allowed the blind person to temporarily keep the service animal while the suit is pending. That is not the law.
Or consider this case: a housing provider has enough information to grant a request — indeed, the information it has makes granting the request the only reasonable choice — but instead it sits on its laurels indefinitely, all the while demanding more information and only allowing the requestor to temporarily keep the service animal while it considers the request. Under Sabal Palm's logic, the housing provider would not have constructively denied the request even though the requestor must live with the annoyance and harassment of requests for additional information and with the uncertainty of whether their request would be granted. The right to a valid and reasonable accommodation under the FHA necessarily implies that housing providers must make a decision. They cannot delay indefinitely.
Because it is clear in the present case that the request should be granted, continuing to delay for months and asking for even more information amounts to a constructive denial. The Fischers are therefore entitled to summary judgment on the issue of Sabal Palm's liability.
The only remaining question with respect to Silvergold's liability is whether his own actions make him liable as a matter of law. They do.
Individual board members or agents such as property managers can be held liable when they have "personally committed or contributed to a Fair Housing Act violation." Falin v. Condominium Association of La Mer Estates, Inc., 2011 WL 5508654, at *3 (S.D.Fla. Nov. 9, 2011) (Cohn, J.); accord Housing Opportunities
The attempts to hold Trapani liable for Sabal Palm's decision to constructively deny Deborah's requested accommodation are unavailing. The Fischers do not cite to a case where an attorney has been liable for a client's violation of the FHA. And the Court has not found such a case. Quite the contrary, the Court did find one case in which the Court rejected the attempt to hold an attorney liable under the FHA: "Plaintiff has asserted no legal theory by which an attorney representing a client in an eviction proceeding can be subjected to civil liability for discrimination under the FHA. `A lawyer, like other agents, is not as such liable for acts of a client that make the client liable.'" Givens v. Wenker, 2012 WL 1680099 at *7 (S.D.Ohio May 14, 2012) (quoting Restatement (Third) of the Law Governing Lawyers, Section 56 cmt. c (2000)).
The attempts to hold Trapani liable fail for a similar reason. It is undisputed that Trapani is just Sabal Palm's attorney. (ECF No. 200 at 3.) He has no authority to vote — and did not in fact vote — on Sabal Palm's decision to sue Deborah instead of simply granting her requested accommodation. (Id. at 3-4.) The decision to not affirmatively allow Deborah to keep Sorenson as an accommodation — i.e., constructive denial through delay and unreasonable requests for information — is the basis for Sabal Palm's liability. Sabal Palm had more than enough information to make it clear that Deborah was legally entitled to keep Sorenson, but Sabal Palm did not grant her accommodation request. Trapani had nothing to do with that decision. Even if he rendered advice that Deborah was either not or likely not entitled to an accommodation — advice that admittedly would be very bad — that advice is not unlawful discrimination. That occurred when Sabal Palm acted on that advice and voted to not grant Deborah's accommodation request. Because Trapani had nothing to do with that vote and had no authority over Sabal Palm's decision, the unlawful action was fundamentally Sabal Palm's, not Trapani's. Silvergold, on the other hand, affirmatively voted to deny Deborah's accommodation request and sue instead. That's why Silvergold is liable and Trapani isn't.
Moreover, it would be a bad idea to subject the mere rendering of attorney advice to liability under the FHA because doing so would discourage attorneys from advising that the housing provider did not have to grant a request for fear that the attorney would be personally liable if the housing provider denied the request and discriminated in doing so. But this conclusion does not mean that Trapani is free from all potential sanctions for what may have been very bad legal advice. If an attorney's advice is so bad that they commit legal malpractice, he or she can be sued by the client. But that is obviously a
Trapani's motion for summary judgment on the Fischers' refusal-to-accommodate claim is therefore
The discussion above establishes — at a minimum — two propositions that are fatal to Sabal Palm's summary-judgment motion on its declaratory-judgment action: (1) that Sabal Palm was not entitled to additional information beyond the records that Deborah produced before Sabal Palm voted to not grant the accommodation and sue and (2) that Sabal Palm should have granted Deborah's reasonable accommodation request after reviewing the records she provided in December 2011. (The discussion also makes clear that reviewing the December records would be easy because they were not complicated to understand and they made it obvious that Deborah was entitled to keep Sorenson.) The Court therefore
For the above reasons, the Fischers' summary-judgment motion (ECF No. 225) is
